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937-WP-884-22.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.884 OF 2022

1.

Vijaysing S/o. Nathesing Rajput,

Age 69 years, Occu. Agri.,

R/o. “Sakuba” Niwas,

Loknete Amadar Swargiya Thansing

Jibhau Chowk, Shindkheda, Dist. Dhule

2.

Pramod S/o. Bhika Gurav,

Age 45 years, Occu. Social worker,

R/o. Gurav Galli, Shindkheda,

Dist. Dhule

.. Petitioners

Versus

1.

Agriculture Produce Market Committee,

Dondaiche Branch, Shindkheda,

Dist. Dhule

Through its Secretary/Sabhapati

2.

S. Kumar Constructions Company, Amalner,

Opp. to Vijay Maruti Temple,

Dhule Road, Amalner, Dist. Jalgaon

3.

Assistant Engineer Class-I,

Sub-Division Z.P. Bandhakam,

Panchayat Samiti Premises,

Shindkheda, Dist. Dhule

.. Respondents

…

Mr. B. R. Waramaa, Advocate for Petitioners

Mr. S. P. Brahme, Advocate for Respondent No.1

Mr. A. R. Syed, Advocate holding for Mr. M. S. Shah, Advocate for

Respondent No.2

Mr. U. S. Patil, Advocate for Respondent No.3

...

CORAM :

NITIN B. SURYAWANSHI, J.

DATE :

04-03-2022

JUDGMENT :-

Rule. Rule made returnable forthwith. Heard finally with

the consent of the parties.

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937-WP-884-22.odt

2.

This petition challenges the order passed by the learned Civil

Judge, Junior Division, Shindkheda, below Exhibit-163 in Regular

Civil Suit No. 102 of 2012, dated 16.12.2021, thereby rejecting

the Application filed by the petitioners, under Order XXVI, Rule 10

of the Code of Civil Procedure, 1908 (“CPC”), for appointment of

Court Commissioner.

3.

The petitioners-plaintiffs filed the said suit in representative

capacity for permanent injunction that, the respondents-

defendants should be prevented from raising illegal construction of

shopping complex. Further prayer is made that, for bringing

correct position of the spot, a Cadesteral Surveyor be appointed as

a Court-Commissioner.

.

Application (Exhibit-9) is filed by the petitioners contending

that, the defendants are raising construction, which is

encroachment on the State Highway No. 66 Shindkheda-Varul-

Dondaiche road, which is in contravention on the rules, therefore,

a Cadesteral Surveyor be appointed for measurement of the

disputed property.

.

That application came to be allowed by the trial Court with

the direction to the Cadesteral Surveyor to carry out the

measurement of disputed land and submit a report and map to the

Court. The said direction was carried out by the Cadesteral

Surveyor. Thereafter, the evidence of Cadesteral Surveyor was

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937-WP-884-22.odt

recorded, wherein, in the cross-examination, he has given vital

admission to the effect that, no notices were given to the plaintiffs

and defendants. He has measured City Survey No. 1753

(disputed property). However, the map of State Highway No. 66

and its record is not available in his office. Similarly, the map and

record of Shindhkheda-Varul road is not available in the office.

He is not aware that, as to when the said road was constructed

and when its measurement was carried out, and what is the length

and width of the said road. When he went for measurement, he

did not have the map and record of Shindhkheda-Varul road. He

did not requisition the map and the record of the said road from

anybody.

.

In view of the evidence so recorded, the plaintiffs preferred

application (Exhibit-163) for appointment of Taluka Inspector of

Land Records (“TILR”), Shindhkheda as a Court Commissioner,

with a direction to him to measure the disputed property on the

basis of map of Shindhkheda-Varul-Dondaicha State Highway

No. 66, the distance of the disputed property from the said road

and to ascertain as to whether the disputed construction is within

12 meters from the middle of the said State Highway. This

application is rejected by the trial Court on the ground that, the

plaintiffs are trying to collect evidence and trying to fill up lacuna

in the evidence of Cadesteral Surveyor.