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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO.13138 OF 2021

TULSHIRAM DADARAO SAPATE

VERSUS

SHRIRANG SHAHAJI PAWAR

...

Mr A. S. Deshpande, Advocate for petitioner

CORAM : SMT. BHARATI DANGRE, J.

DATE : 16^th February, 2022

PER COURT:

1.

Heard the learned Counsel for the petitioner, who has failed

to make out a case for any indulgence.

The facts in brief would reveal that the petitioner is the

original plaintiff who filed Regular Civil Suit No.134/2021

seeking a relief of perpetual injunction against the defendant,

which is premised upon a pleading that the defendant, on the basis

of collusive measurement report, prepared by the concerned

authority, is attempting to remove and disturb the Shiv-Rasta and

encroached upon the field of the plaintiff.

2.

When the pleadings in the plaint instituted by the plaintiff

are perused, in paragraph No.3, it is specifically avert that the

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defendant, behind the back of the plaintiff, has got measured his

land and claiming his excess land in the plaintiff’s suit land by

taking disadvantage of the alleged collusive measurement. The

plaintiff has also pleaded that, he raised an objection about the

alleged false measurement and even filed an objection before the

Tahsildar Latur and his application is pending.

3.

On the defendant being issued with summons, he has filed

written statement and in paragraph 10, the defendant has been

raising objection that the Revenue Authorities regarding

encroachment by the plaintiff over the Peth-Chandeshwar Shiv-

Rasta, which lie between the land of the defendant and the land of

the plaintiff and he has pointed out to the Revenue Authorities in

the year 2010 and it is the plaintiff, who has encroached upon

Shiv-Rasta and is cultivating his crops on the said road. It is also

pleaded by the defendant that pursuant to the complaint of the

defendant, the Revenue Authorities have conducted an enquiry

through the Mandal Adhikari and the Talathi of the village Peth

and the plaintiff and the defendant had as per the directions of the

Revenue Authorities measured the respective land through the

T.I.L.R. Latur and in the measurement, it is revealed that the

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plaintiff has encroached Shiv-Rasta between the land of the

plaintiff and the defendant.

4.

In the wake of the pleadings in the plaint, being traversed by

the defendant by specifically filing written statement, it is upon

the plaintiff to make his case good by adducing evidence.

Instead, he moved an application purportedly under Order

XXVI Rule 9 of the Code of Civil Procedure, seeking

appointment of the Surveyor/Court Commissioner to carry out

joint measurement of the suit land of the plaintiff and the land

under the Shiv-Rasta towards the western side of the defendant’s

land and fix the boundaries.

This application came to be rejected under the impugned

order on 23/09/2021 by the learned 6^th Joint Civil Judge Senior

Division, Latur, and the detail order is based on a clear position of

law to the effect that the provision of appointment of the Court

Commissioner cannot be invoked so as to collect evidence for the

parties and if the plaintiff has filed suit for perpetual injunction,

he must establish his case, particularly in the wake of the written

statement filed by the defendant, he should justify his relief in the

plaint.

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5.

In the wake of the above, the impugned order has rightly

rejected the claim of the petitioner for appointment of Court

Commissioner and since no legal infirmity is noticed in the

impugned order, the same is upheld. Writ Petition is dismissed.

(SMT. BHARATI DANGRE, J.)

sjk