Bombay High Court
Laxman Madhavrao Pawar vs Rohit Rajabhau Pandit And ... on 20 April, 2016
Bench: S.P. Deshmukh
1 WP-9107.15.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
BENCH AT AURANGABAD
WRIT PETITION NO. 9017 OF 2015
Laxman s/o Madhavrao Pawar,
Age 40 years, occup. Social Service,
R/o Kolher Road, Georai,
Tq. Georai, Dist. Beed .. Petitioner
versus
01. Rohit s/o Rajabhau Pandit,
Age 34 years, occup. Agril.,
R/o Main road, Georai, Tq.
Georai, Dist. Beed
02. The Chief Officer,
Municipal Council, Georai,
Tq. Georai, Dist. Beed .. Respondents
-----
Mr. R. K. Temkar, Advocate i/b Mr. Vilas P. Savant, Advocate for
petitioner
Mr. V. D. Salunke, Advocate i/by Mr. V. V. Patil, Advocate for
respondent no.1
Respondent no. 2 is served.
CORAM : SUNIL P. DESHMUKH, J.
DATE : 20TH APRIL, 2016
ORAL JUDGMENT :
1. Rule. Rule made returnable forthwith. By consent, parties are
heard finally.
2. I have heard learned counsel for the parties at length.
3. Petition has been moved by original plaintiff against order dated
08-07-2015 passed upon his application Exhibit-37 in regular civil suit
no. 404 of 2015, whereunder his request pursuant to Order XXVI, rule
2 WP-9107.15.doc
9 of the Code of Civil Procedure, 1908 for appointment of
commissioner for measurement of defendants' land has been rejected
by Joint Civil Judge, Junior Division, Georai.
4. The suit has been instituted seeking reliefs, inter alia, for
injunction in respect of land shown in the sketch map annexed to the
plaint ad-measuring 70' x 60', including injunction against carrying on
construction and for mandatory injunction. While the suit was being
proceeded with, an application for interim relief was filed which was
rejected and in appeal therefrom an order came to be passed directing
disposal of suit within stipulated period.
5. On 23-06-2015, application Exhibit-37 had been moved before
trial court raising various contentions. In short, the submission of
learned counsel for the petitioner is that on southern side of property
sold, there is a road which initially in 1961 was 15 meter wide.
Subsequently it has been made a State high way and road size has
been increased and widened and some portion of plaintiff's land has
been eaten away in the process. Subsequently, said road has been
made national highway and some more portion of land is acquired for
the purpose of road widening. According to learned counsel, land of
defendants will have to be measured in keeping with road size at the
time of purchase of land and not the present position of road.
6. The trial court while passing the order had taken stock of the
situation and also took into account various aspects of the matter as
are contained in paragraphs 8 to 12 of the order.
3 WP-9107.15.doc
7. Having regard to aforesaid, it would be for the plaintiff to place
on record the documents and give evidence in respect of his
contentions. For said purpose, appointment of court commissioner at
this stage does not prima facie appear to be necessary. If upon
evidence the plaintiff is able to place on record that the circumstances
require local investigation by appointment of court commissioner for
measurement, then plaintiff may request the court to be decided on
merits.
8.
In view of the same, it does not appear to be a stage in the
case wherein discretion is required to be exercised in favour of the
petitioner.
9. Writ petition as such is not being entertained and is rejected.
Rule stands discharged.
SUNIL P. DESHMUKH,
JUDGE
pnd
