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IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 5123 OF 2015
1 Smt. Vaishali w/o Kishor Bhakare
age 32 years, occ. Household
2 Kum. Vaishanavi d/o Kishor Bhakare
Age 12 years, occ. Education
3 Vishal s/o Kishor Bhakare
age 8 years, occ. Education
Petitioner nos. 2 and 3 are minors u/g of
Mother i.e. petitioner no. 1
4 Shrishel s/o Bhimrao Bhakare
age 32 years, oc. Agril
5 Rangrao s/o Shankarrao Bhakare
age 67 years, occ. Agril
6 Bhagwat s/o Shankarrao Bhakare
age 77 years, occ. Agril
7 Ramakant s/o Bhagwat Bhakare
age 39 years, occ. Agril
8 Sow. Sunita W/o Chandrakant Bhakare
age 44 years, occ. Agril
All /o Yeli, Tq. Dist. Latur. .. PETITIONERS
VERSUS
1 Limbaji s/o Ghanshyam Sabale
age 67 years, occ. agril
2 Hiralal s/o Keshav Sabale
age 52 years, occ. Agril
3 Ratan s/o Keshav Sabale
age 47 years, occ. Agril
4 Gopal s/o Keshav Sabale
age 38 years, occ. Agril
5 Janak s/o Keshav Sabale
age 44 years, occ. Agril
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All r/o Yeli, Tq. & Dist. Latur .. RESPONDENTS
Mr. S.S. Deshmukh, advocate for petitioners.
Mr. A.V. Indrale Patil, advocate for respondents no. 1 to 5.
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CORAM : S. B. SHUKRE, J.
DATE : 2nd MARCH, 2017. ORAL JUDGMENT : 1. Rule. Rule made returnable forthwith.
2. Heard finally by consent of learned counsel for the respective parties.
3. The suit being Regular Civil Suit No. 570/2012 has been filed for grant of perpetual injunction with direction to defendants not to remove existing cart way and also restraining defendants from committing encroachment on the suit property.
4. According to learned counsel for petitioners, such nature of suit involves a dispute about boundaries as well as issue of demarcation of boundaries. Therefore, the matter of appointment of Court Commissioner would be squarely governed by law laid down by the Apex Court in the case of Haryana Wakf Board Vs. Shanti (2008) 8 SCC 671. He also points out that learned Single Judge of this Court in the matter of Kolhapuri Lakade Vs. Yellappa 2011(3) Mh.L.J. 348, has taken a view that when a dispute is about demarcation of boundaries, following the law laid down by the Apex Court, the Court Commissioner must be appointed. ::: Uploaded on - 04/03/2017 ::: Downloaded on - 05/03/2017 01:04:46 :::
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5. The statement is, however, disputed by learned counsel for respondents. He contends that in the case of Haryana Wakf Board and Kolhapuri Lakade (supra), the suit was for removal of encroachment which is not the case here and the suit is for grant of injunction simplicitor.
6. I think learned counsel for respondents is right. The issue involved in the cases cited supra was one of removal of encroachment, which is not the issue involved in this case. The prayer is only for grant of perpetual injunction and nothing more. Therefore, no perversity or patent illegality could be noticed in the impugned order. There is no merit in the petition. Petition stands dismissed. Final hearing of the suit is expedited. Rule discharged. No costs.
( S. B. SHUKRE ) JUDGE dyb ::: Uploaded on - 04/03/2017 ::: Downloaded on - 05/03/2017 01:04:46 :::