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IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.6048 OF 2021

Maheboob s/o Rasul Shaikh

and others

Petitioners

Versus

Khudboddin s/o Nabi Shaikh

and others

Respondents

Mr.M.P.Kale, advocate for the petitioners

None present for Respondents.

CORAM : AVINASH G. GHAROTE, J.

DATE : 23^rd July, 2021.

PC :

1

Heard Mr.Kale, learned Counsel for the petitioners.

None appears for the Respondents, through served.

2

Mr.Kale, learned Counsel for the petitioners, takes an

exception to the order dated 26.02.2019, by which the application

for measurement of the land in dispute and fxation of the

boundaries has been allowed. The contention is that by way of an

interim order, the fnal relief, as prayed in the plaint, cannot be

granted. It is further submitted that the dispute is in respect of

ownership and possession of the suit property, which the

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defendants claimed to have acquired through their father, which

is in their possession. The plaintiff, on the other hand, claims to

have acquired title to the property on account of intestate

succession.

3

The dispute is as to the holding and boundaries of

parcels of land which comprise S.No.4/A, totally admeasuring

6.51 hectares, out of which, plaintiff claims to own 1.41 hectares,

part of which, to the extent of more than 25 gunthas is claimed

have been encroached by the defendants no.1 to 7 in the private

measurement conducted. The respondents no.8 & 11 have also

embarked upon acts of breaking the common boundaries of their

land and that of the plaintiff, which has led to fling of the suit,

seeking the relief of a decree directing the Deputy Registrar of Land

Records for measuring the land and fxing the boundaries of the

holding of the plaintiff and an injunctive relief consequent thereto.

4

The learned trial Court, by the impugned order, has

merely appointed a Court Commissioner to measure the land of

S.No.4/A admeasuring 1 hectare 41 Ares and to submit the map in

the Court. Merely directing measurement of the land by the TILR

does not mean, that the relief, as prayed in the plaint, is being

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granted. The measurement of the land, in view of the contrary

claims made by the parties to the land in question, is a step in aid

to decide the matter in issue fnally between the parties.

5

It is material to state here that even if the

measurement map & report comes on record, the same will have to

be proved as per law, at which point, it would be open for the

defendants to lodge objections and cross examine the concerned

witness, who is being examined to prove the map & the report..

6

That being the position, no fault can be found with the

impugned order, which merely attempts to demarcate the

boundaries of the suit property. Therefore, there is no merit in the

petition.

7

Writ Petition is accordingly dismissed. No order as to

costs.

8

The learned Counsel for the petitioner, seeks a stay of

the impugned order for a period of four weeks, in view of the

interim order already granted on 08.04.2021. Considering the

request made, the interim order dated 08.,04.2021, is continued

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for a period of four weeks from today, on the expiry of which, it will

automatically get vacated.

(AVINASH G. GHAROTE)

JUDGE

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