Damu Arjun Koli vs Ramdas Arjun Koli And Others
2016 Latest Caselaw 1874 Bom

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             IN THE HIGH COURT OF JUDICATURE OF BOMBAY
                        BENCH AT AURANGABAD




                                                                                  
                         WRIT PETITION NO. 2353 OF 2015




                                                          
     Damu Arjun Koli                                                        PETITIONER
     Age - 59 years, Occ - Agriculture
     R/o Mhasavad, Taluka - Shahada
     District - Nandurbar




                                                         
              VERSUS

     1.       Ramdas Arjun Koli                                        RESPONDENTS




                                               
              Age - 64 years, Occ - Agriculture

     2.
                             
              Laxman Arjun Koli
              Age - 52 years, Occ - Agriculture

     3.       Subhash Arjun Koli
                            
              Age - 64 years, Occ - Agriculture
              All R/o Mhasavad, Taluka - Shahada
              District - Nandurbar
      

                                   .......

Mr. Durgesh M. Pingale, Advocate for the petitioner

Mr. Amit S. Savale, Advocate for respondents No.1 to 3 .......

[CORAM : SUNIL P. DESHMUKH, J.]

DATE : 26th APRIL, 2016

ORAL JUDGMENT :

1. Rule. Rule made returnable forthwith and heard finally with

consent of learned advocates for the parties.

2. The petitioner had moved application Exhibit-61 in regular

civil suit No.71 of 2011 seeking appointment of court

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commissioner pursuant to Order XXVI, Rule 9 of the Civil

Procedure Code, for measurement of the land and to fix

boundaries. The respondents had opposed the application stating

that this would tantamount to collection of evidence and that the

matter was already fixed for final arguments and only because

issues have been recast, it cannot be said that prejudice is

caused to the plaintiff and that the application has been moved

to fill up the lacunae. Application for such purpose is abhorred by

law and is not permissible.

3. The trial court under its order dated 17 th January, 2015

rejected application Exhibit-61. The trial court, while rejecting

the application has given following reasons -

"10. Perusal of record makes it clear, that the present suit is filed for the simplicitor perpetual injunction. By way of perpetual injunction he prayed for restraining

defendants from causing obstruction to him from using water from suit bore well. Before proceeding further it is necessary to mention that, it is admitted fact between parties that partition was taken place between them and

accordingly mutation entries are effected to that effect. Furthermore, parties are cultivating their own share as came to be alloted during the partition. In these circumstance the plaintiff is having opportunity to lead necessary evidence to prove exact location of the suit bare well.

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11. But, it is settled law that the court should not

exercise discretion to assist the plaintiff in collection of evidence or proving disputed facts. Furthermore, perusal of

record makes it clear that already sufficient opportunity was granted to parties to lead evidence in support of their respective pleadings. No doubt, at the time of final

arguments this court felt necessary to recast the issues framed at Exh.21. But, after recasting of issues considering the overall record and proceeding it appears that by way of

present application the plaintiff is seeking help of this Court to fill up the lacuna in the case which is not

permissible in the eye of law. In view of above said discussion, the application needs to be rejected."

4. Having regard to given facts and circumstances, the order

appears to be impeccable and does not deserve any meddling

with at this stage.

5. Writ petition, as such, stands dismissed with no order as to

costs. Rule stands discharged.

[SUNIL P. DESHMUKH, J.]

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