IMPORTANT POINTS
(1) Court is empowered to appoint another Court Commissioner and there is no question of attracting principle of res judicata.
(2) Production of additional evidence – Appellate Court can even direct examination of witnesses.

JUDGMENT

Rule. Rule made returnable forthwith. With consent of both the sides, the petition is taken up for final hearing.

2. Order dated 15 December 2021 passed by the District Judge, Solapur rejecting Petitioner’s application for appointment of Court Commissioner for measurement of lands during pendency of Appeal is the subject matter of challenge in the present Petition.

3. Petitioner / plaintiff instituted a Regular Civil Suit No.62 of 2010 for permanent injunction as well as for recovery of possession of encroached portion of land. During pendency of the Suit, Petitioner/plaintiff fled an application under the provisions of Order 26 Rule 9 of Civil Procedure Code, 1908 (“Code”) for appointment of Court Commissioner for measurement of lands and filing of boundaries. The Trial Court was pleased to allow the application vide its order dated 1 August 2011 and Taluka Inspector of Land Record (“TILR”) came to be appointed as the Court Commissioner for conducting joint measurement of lands bearing Gat Nos. 137/3/A, 137/3/B, 137/2/B/1 and 122 and to indicate the boundaries of lands in possession of the respective parties. TILR conducted measurement of lands and fled his report along with a copy of map. He was examined as a witness in the Trial Court. The report of the TILR was prima facie in favour of Plaintiff / Petitioner. However, during the course of arguments in the Suit, the validity of report of the TILR was questioned raising various technical objections and also about the manner in which the measurements were conducted. The Trial Court therefore proceeded to dismiss the Suit vide its judgment and order dated 24 July 2018. Plaintiff / Petitioner has preferred a Regular Civil Appeal No.189 of 2018 before the Court of District Court, Solapur. In this Appeal, Plaintiff / Petitioner fled an application for appointment of Court Commissioner for re-measurement of lands on the premise that the earlier measurements conducted were defective. The District Judge has proceeded to reject the application by the impugned judgment and order dated 15 December 2021.

4. Appearing for Petitioner, Mr. Dilip Bodake the learned counsel would submit that even though report of TILR appointed as Court Commissioner vide order of the Trial Court supports the case of Petitioner/plaintiff, the report has been discarded by the Trial Court on account of objection raised by Defendants / Respondents about the manner in which the measurements were conducted. He apprehends that even the District Court is likely to ignore the measurements report for the very same reason. He would submit that in such a situation, it would be necessary to re-measure the lands so as to present the clear picture of the site before the Trial Court.

5. Petition is resisted by Mr. Samir Kumbhkoni, the learned counsel for Respondents. He would question the maintainability of the application fled by Petitioner / Plaintiff before the Appellate Court for re-measurement of lands. He would submit that the application was not fled as per the provisions of Order 41 Rule 27 of the Code. He would question the correctness of submission of Petitioner that the measurement report of TILR has been altogether ignored by the Trial Court and would submit that the same is actually taken into consideration while dismissing the Suit fled by the Plaintiff/Petitioner. He would further submit that allowing the application of Petitioner/Plaintiff would amount to res judicata as the issue with regard to measurement of lands stands concluded between the parties and cannot now be permitted to reopened. In support of his contention, he relies upon the judgment of the Apex Court in Satyadhyan Ghosal and Ors Versus Smt. Deorjin Debi and Anr. AIR 1960 SC 941.

6. Rival contentions of the parties now fall for my consideration.

7. Petitioner / Plaintiff has fled a Suit seeking inter alia recovery of possession of encroached portion of land. Thus, there is allegation about encroachment over the Suit property by Defend