Advocates:
['CHOUDHARI SUSHANT B', 'Adv S N LALE YELWATKAR', 'B', '', '', 'S N LALE YELWATKAR V P', '', 'R Nos', 'B', '', 'are served']

1 7-WP-1966-21.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.1966 OF 2021

CHAITANYA JAIPRAKASH SALGARE AND OTHERS

VERSUS

SHIVAJI SATAPPA BARDAPURE DIED THROUGH L.RS. VIJAYABAI

SHIVAJI BARDAPURE AND OTHERS

...

Advocate for Petitioners : Mr. Sushant B. Choudhari

Advocate for Respondents No.1A, 1B, 2, & 3 : Mr. S. N. Lale

Yelwatkar

...

CORAM : NITIN B. SURYAWANSHI, J.

DATE : 25^th JULY, 2022

PER COURT :

1.

This petition impugns the order dated 16/03/2020

passed by learned Civil Judge Junior Division, Ausa below Exhibit-44

in Regular Civil Suit No.444/2013, thereby rejecting application filed

by the petitioners/plaintiffs for appointment of Court Commissioner.

2.

The petitioners filed suit for demarcation of boundaries

in respect of the suit property. It is the case of the petitioners that

respondents are adjacent land holders and they are trying to

encroach on the suit property. Therefore, it is necessary to appoint

Taluka Inspector of Land Records for measurement of suit property.

3.

The suit is resisted by the respondents by filing written

statement. Thereafter the petitioners examined their witness and

then filed present application seeking appointment of Court

Commissioner. The said application is opposed by respondents. The

2 7-WP-1966-21.odt

trial Court has rejected the application on the ground that

petitioners have not sought appointment of Court Commissioner for

demarcation of boundaries and there is no case of the petitioners of

encroachment. Hence, the present petition.

4.

Heard learned advocate for petitioners and learned

advocate for respondents.

5.

Perusal of the plaint shows that the fact of

encroachment is specifically pleaded by the plaintiffs/petitioners in

paragraph Nos.3 and 4 of the plaint. Respondents/defendants have

dispute about the area of suit property purchased by petitioners

from Somani under the sale deed. In these facts when the suit is

filed for measurement and demarcation of the suit property and

petitioner is claiming that respondents have encroached on the suit

property, taking into consideration the settled legal position, trial

Court ought to have appointed Court Commissioner in the present

matter.

6.

This Court in Ramzan Sheikh Chand Sheikh (Died)

Through LRs. and Others Vs. Panjab Nathuji Gawande, 2016(4) ALL

MR 765, held:-

“7.

The trial Court should have taken into consideration

that it is always desirable to have disputed suit property

measured by competent surveyor to find out encroachment

and its extent and that, oral evidence cannot prove such

contentious issue conclusively. This Court has time and

again expressed opinion about the necessity of duly drawn

measurement plan/map in any suit in which there is a

boundary dispute.”

3 7-WP-1966-21.odt

7.

In Kashinath Ramkrishna Chopade Vs. Purushottam

Rulshiram Tekade and Others, 2005(6) Bom.C.R. 267, it is held:-

“....The object of the local investigation is not so much to

collect evidence which can be taken in Court, but to obtain

evidence which from its peculiar nature can only be had on

the spot. The cases of boundary disputes and disputes

about the identity of lands are instances when a Court

should order a local investigation under Order XXVI, Rule 9

of the Code of Civil Procedure....”

8.

In Sulemankhan and Others Vs. Bhagirathibai and

Others, 2014(5) ALL MR 552, it is held:-

“8.

In cases to determine encroachment, it is always

desirable to have disputed suit property measured by

competent surveyor to find out encroachment and its

extent. Oral evidence cannot prove such contentious issue

conclusively. In a suit where parties are disputing

boundaries of property and one of the parties alleges

encroachment made by another party to the suit inside suit

property. In such case the plaint map as evidence in

respect thereof is vital docume