P.C.

1. Heard the learned Counsel for the parties.

2. The challenge in this Petition is to an order dated 5 January 2024 passed by the learned Civil Judge, Jr. Division, Mohol, on an application for appointment of the cadestral surveyor as Court Commissioner to have a joint measurement of the suit land and the adjacent lands and submit a map showing encroachment, if any.

3. Respondent No.1 – Plaintiff has instituted the suit with the assertion that the Plaintiff is the holder of agricultural land admeasuring 40 R out of the suit property described in paragraph No.1B of the plaint i.e. Gat No.1/1/K situated at Mauje Savleshar, Tal Mohol, Solapur. The Defendant No.1 is the holder of the land on the northern side. It admeasures 41R. The Defendant No.2 is the holder of the adjacent land admeasuring 1 H and 52 R. The

Plaintiff had acquired the land from different vendors. Upon acquisition of the lands, it transpired that Defendant No.1 has committed encroachment over the suit land described in paragraph No.1A of the plaint to the extent of 7 to 8 gunthas. The Plaintiff called upon the Defendants to remove the encroachment. Defendants gave evasive replies. Hence, the suit for removal of encroachment. The Plaintiff also sought the relief of appointment of the cadestral Surveyor as a Court Commissioner to measure the suit land 1B and fix the boundaries thereof, and, in the event, the measurement revealed encroachment, a decree for removal of encroachment and delivery of possession of the encroached portion of the suit land.

4. In the said suit, the Plaintiff filed an application for appointment of the Court Commissioner on the day the suit was instituted. By the impugned order, the learned Civil Judge was persuaded to allow the application opining, inter alia, that the joint measurement of the lands and the report of the cadestral surveyor would assist the Court in deciding the real question in controversy between the parties. Being aggrieved, the Defendant No.1 has invoked the writ jurisdiction.

5. Learned Counsel for the Petitioner submitted that the learned Civil Judge committed an error in law in appointing the Court Commissioner at the very inception of the suit. The issues have not yet been framed. The trial has not commenced. At a pre-mature stage, the learned Civil Judge could not

have directed the appointment of the Court Commissioner. To lend support to this submission, learned Counsel for the Petitioner placed reliance on the judgments passed by this Court in the cases of Sitaram Suklal Patil and Anr. V/s. Vasudeo Suklal Patil^{1WP No.9626 of 2016} and Shantaram Dattatray Kekan and Ors. V/s. Bhausaheb Karbhari Kekan and Anr.^{2WP No.14046 of 2021 dt. 5 Dec. 2022}.

6. Learned Counsel for the Petitioner would further urge that the Plaintiff had not prayed for preparation of a map and, yet, the learned Civil Judge gave directions to prepare a map and show encroachment, if any. Therefore, the impugned order deserves to be quashed and set aside.

7. In opposition to this, learned Counsel for Respondent No.1, supported the impugned order. It was submitted that the Plaintiff had approached the Court with a positive case that the Defendants have committed encroachment over the area admeasuring 7 to 8 gunthas. Since the allegations are of encroachment and boundary dispute has arisen, learned Civil Judge committed no error in appointing Court Commissioner, submitted Mr. Kasbekar.

8. I have perused the material on record, especially the averments in the plaint. The Plaintiff has averred that, after he acquired the suit land described in paragraph No.1B of the plaint, it was realized that Defendant No.1 had committed encroachment to the extent of 7 to 8 gunthas land. The

Defendants also threatened to commit further encroachment.

9. Incontrovertibly, the suit land and the land of the Defendants are situated adjacent to each other. The suit is for removal of encroachment and delivery of possession of the encroached portion of the suit land. It is true, in