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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD

WRIT PETITION NO. 215 OF 2019

Mahadeo Kondiba Shinde

...Petitioner

versus

Nitin Sakharam Shinde and another

...Respondents

…..

Mr. A.P. Bhandari, advocate for petitioner

Mr. S.S. Bora, advocate for respondent Nos. 1 and 2.

…..

CORAM : V. K. JADHAV, J.

Date of Reserving

the Order : 24.02.2021

Date of pronouncing

the Order :16.03.2021

PER COURT:-

1.

By consent, heard finally at admission stage.

2.

Being aggrieved by order dated 19.11.2018 passed by the

learned Joint Civil Judge, Junior Division, Patoda below Exh.40 in

Regular Civil Suit No. 69 of 2012, the petitioner-original defendant

has preferred this writ petition.

3.

The respondents have instituted Regular Civil Suit No. 69 of

2012 for declaration of ownership and decree of perpetual injunction

in respect of the suit property bearing land Survey No. 16/2/AA totally

admeasuring 7 Hectare 37 R to the extent of 4 Hectare 22 R situated

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at Sautada, Tq. Patoda, District Beed. The petitioner, as the original

defendant, has resisted the said suit by filing written statement.

Pending the suit, respondent No.1 filed an application Exh.40 for

appointment of Deputy Superintendent of Land Records, Patoda as a

Court Commissioner. By impugned order dated 19.11.2018 passed

below Exh.40, the trial court has allowed the application directing the

T. I. L. R. Patoda to carry out the measurement and fix the

boundaries of the land of the petitioner and the respondents. Hence,

this writ petition.

4.

Learned counsel for the petitioner submits that even prior to

commencement of evidence in the suit; the respondents have filed

an application Exh.40 for appointment of Deputy Superintendent of

Land Record, Patoda as Court Commissioner. Learned counsel

submits that the said application Exh.40 has been filed with a sole

intention for collecting evidence. Learned counsel submits that the

object of the local inspection under Order XXVI Rule 9 of C.P.C. is

not to collect evidence, which can be taken in the court but to obtain

the evidence for elucidating the matters. Thus, the court may better

appreciate the evidence already on record and at its discretion may

appoint the Court Commissioner for local inspection. Learned

counsel submits that this court has taken consistent view in various

matters that the Commissioner for local inspection can only be

appointed only after the parties have led their evidence.

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5.

Learned counsel for the petitioner, in order to substantiate his

submissions, placed reliance on the following cases:-

i)

Order dated 17.01.2014 passed by this Court (Coram: S.V.

Gangapurwala, J.) in writ petition No. 8877 of 2013.

ii)

Order dated 04.03.2013 passed by this Court (Coram: S.S.

Shinde, J.) in writ petition No. 2749 of 2012.

iii)

Sanjay Namdeo Khandare vs. Sahebrao Kacharu Khandare

and others, reported in 2001 2 Mh.L.J. 959,

iv)

Dnyandeo Vithal Salke and others vs. Dagdu Kadar Inamdar

and others, reported in 2017 (3) Mh.L.J. 314,

v)

Syed Mushtaque Ahmad Syed Ismail and others vs. Syed

Ashique Ali Khan s/o Haidar Ali and others, reported in 2011

STPL 23010 Bombay,

vi)

Order dated 12.12.2019 passed by this Court (Coram: V.K.

Jadhav, J.) in writ petition No. 6969 of 2018,

vii)

Unreported judgment dated 20.11.2017 passed by this court

(Coram: R.M. Borde, J.) in writ petition No. 6392 of 2013,

viii)

Unreported judgment dated 17.01.2012 passed by this Court

(Coram: S.V. Gangapurwala, J.) in writ petition No. 9089 of

2011,

6.

Mr. Bora, learned counsel for the respondents-original

plaintiffs submits that there is no stage prescribed as such under

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Section 75 r