941.WP.11280.21.odt

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.11280 OF 2021

DATTATRAY MOHAN GIRI THROUGH HIS POWER OF ATTORNEY

LAXMIBAI DATTATRAY GIRI

VERSUS

SHANKAR PANDITRAO PATIL AND OTHERS

...

Advocate for Petitioner : Mr. N.J. Patil

...

CORAM

: MANGESH S. PATIL, J.

DATE

: 12.10.2021

PER COURT :

Heard the learned advocate Mr. N.J. Patil for the petitioner.

2.

The petitioner is the original plaintiff who is claiming perpetual

injunction restraining the respondents defendants from obstructing his

possession over the suit property.

3.

By moving Application (Exhibit-88) at his request the trial court

appointed TILR Ausa as a Court Commissioner for carrying out

measurement and for fixing the boundaries. Accordingly the TILR carried

out the measurements and submitted a report inter alia showing that it is

the petitioner who is in possession of a portion of respondent'

s land. Since

by the order the Court Commissioner TILR was directed to merely fix the

boundaries but he having shown the encroachment, the petitioner made

another application requesting the court to direct a remeasurment by the

TILR. That Application was rejected. He thereafter file another Application

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(Exhibit-119) once again making a request to fix the boundaries by

appointing TILR as a Court Commissioner as per the earlier order passed on

the original Application (Exhibit-88). By the impugned order the learned

Judge has rejected the Application.

4.

The learned advocate for the petitioner submits that the TILR

was expected to fix the boundaries as per the directions in the order passed

on his Application (Exhibit-88). Ignoring such directions, the TILR carried

out the measurement and without fixing the boundaries demonstrated as to

how the petitioner is in possession of excess land. Since the directions of the

court in the judicial order were not obeyed an innocuous request was made

to direct him to remeasure the land and still the trial court rejected that

Application. Faced with the situation the petitioner had no alternative but

to make a fresh application seeking a self same direction for carrying out

measurement and fixing the boundaries. The trial court ought not to have

rejected the Application. It failed to appreciate all the aforementioned facts

and circumstances. The order being impugned be quashed and set aside.

5.

I have carefully gone through the papers and considered the

submissions of the learned advocate. In fact, it is a suit for perpetual

injunction simplicitor whereby the petitioner is claiming to restrain the

respondents from obstructing his possession. In view of such nature of the

suit, in fact there was no occasion for appointment of a Commissioner and it

is for the petitioner, independently, to demonstrate and substantiate his

exclusive possession. Still, he was able to obtain a direction for appointment

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of a Court Commissioner for carrying out measurement and fixing the

boundaries as per the order passed on his Application (Exhibit-88). Though

the TILR failed to fix the boundaries as per the direction, he noticed that the

petitioner is in possession of some excess land and demarcated it in his

report. Instead of seeking a remedy to get the land measured by resorting to

a superior measurement he once again made a request to the trial court to

direct the TILR to carryout remeasurement and fix the boundaries as per the

earlier order. His application was rejected and the order reached finality.

After such rejection of earlier Application (Exhibit-103) by the order dated

08.02.2018, he has made another attempt by filing a present Application

(Exhibit-119) on 29.04.2019.

6.

It is thus apparent that instead of seeking a superior

measurement the petitioner has been insisting for appointment of Court

Commissioner for carrying out the self same measurement which has

already taken place. Since the result of the measurement prima f