Bombay High Court
All vs Age 55 Yrs on 9 December, 2010
Bench: A.A. Sayed
1
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
APPELLATE SIDE, BENCH AT AURANGABAD.
WRIT PETITION NO.2407/2010
1] Smt.Nalubai Narayan Shinde
Age 50 yrs, Occ-Agriculturist
2] Anil Narayan Shinde
Age 31 yrs, Occ-Agril
3] Sanjay Narayan Shinde
Age 28 yrs, Occ-Agril.
4] Ganesh Narayan Shinde
Age 24 yrs, Occ-Agril
All R/o Shendi, Tq.Ahmednagar
Dist.Ahmednagar. .. PETITIONER
[ORIG.PLAINTIFF]
VERSUS
Gopinath Dagdu Shinde
Age 55 yrs, Occ-Agril
R/o Shendi, Tq.Ahmednagar,
Dist.Ahmednagar. .. RESPONDENT
[ORIG.DEFENDANT]
....
Shri M.R.Sonawane,Adv.for Petrs.
Shri Yuvraj Kakade,Adv.for Respondent.
....
CORAM : A.A.SAYED,J.
DATE : 09/12/2010.
ORAL JUDGMENT :
1] Rule. Rule made returnable forthwith. By consent,
petition is heard finally.
2] The order dated 7/1/2010 passed by the Joint Civil
Judge, Junior Division, Ahmednagar is subjected to challenge
in this Petition. By that order, the application of the
respondent/orig.deft. under Order XXVI Rule 9 of C.P.C. for
appointment of Court Commissioner came to be allowed.
3]
The impugned order is passed appointing an advocate as
Court Commissioner to visit the spot in question and to
submit a report in respect of possession of the suit
property. The learned counsel for the petitioner submitted
that no commissioner can be appointed by the Court to
collect evidence. He has relied upon the following cases in
support of his contention :
[I] Sanjay Namdeo Khandare V/s Sahebrao Kachru
Khandare & Ors reported in 2001 (2) Mh.L.J.
[II] Efigenio Dias and another V/s Malaquias
D'Costa & Ors. reported in 2000 (2) Mh.L.J.
[III] Puttappa V/s Ramappa reported in AIR 1996
Karnataka 257.
4] In the aforementioned cases, it is held that the Court
Commissioner cannot be appointed to find out as to who is in
actual possession of the suit field.
5] The learned counsel for the respondent, on the other
hand, relied upon a decision of learned Single Judge of this
Court (Nagpur Bench) in the case of Kashinath Chindhuji
Shastri V/s Haribhau Nathuji Bawanthade reported in 2006
(Supp.) Bombay C.R. 1018, wherein, the learned Single Judge
has held that in absence of map of site showing the portion
which was encroached upon, the decree becomes meaningless
and remanded back the matter to the trial Court for a fresh
decision after appointment of commissioner under Order XXVI
Rule 9 of C.P.C.
6]
I have considered the rival contentions of the parties
and in my view, the impugned order cannot be sustained in
view of the decision of this Court in the cases of Sanjay
Namdeo Khandare (supra) relied upon by the learned counsel
for the petitioner. It is well settled that Commissioner
cannot be appointed to find out as to who is in possession
of the suit field/suit premises.
7] In so far as the case relied upon by the learned
counsel for the respondent is concerned, that was a case of
an encroachment. The present case is neither of an
encroachment nor a boundary dispute.
8] In these circumstances, the impugned order which has
the effect of collecting evidence by the Court Commissioner,
is unsustainable and is required to be set aside and
accordingly set aside. Rule is made absolute accordingly
with no order as to costs.
(A.A.SAYED,J.)
umg/wp2407-10
