Sachin Anandrao Gonnade vs Shamrao S/O Yadavrao Gonnade
2016 Latest Caselaw 3423 Bom

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                IN THE HIGH COURT OF JUDICATURE AT BOMBAY, 




                                                                                                       
                           NAGPUR BENCH, NAGPUR

                                       WRIT PETITION No.5514 OF 2015




                                                                                                      
    Sachin Anandrao Gonnade,
    aged about 31 years, Occu. Service, 
    R/o Ram Mandir Ward, Bhandara. ...                                                          ...                           Petitioner. 




                                                                                
                                                ..Versus..

    Shamrao s/o Yadavrao Gonnade, 
    Aged about 60 years, Occu. Business, 
                                                  
    R/o Ram Mandir Ward, Bhandara.  ...                                                        ...                       Respondents.
    .......................................................................................................................................................

Mr. S.R. Deshpande, advocate for petitioner.

N.G. S0lao, advocate for respondent sole.

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                                                CORAM                  :  A.S. CHANDURKAR, 
                                                                                              J.
         


                                                DATED                  :  28 rd
                                                                                 JUNE, 2016.
      



    ORAL JUDGMENT.

Rule. Rule made returnable forthwith. Heard finally with the

consent of the learned counsel for the parties.

2. The petitioner who is the original plaintiff is aggrieved by the

order passed below Exh.41 rejecting the application for appointment of

Commissioner. The plaintiff has filed suit for declaration with regard to his

easementary right to discharge water, prayer for demolition of defendant's

excess construction along with further prayer of injunction. In the suit, the

petitioner filed an application below Exh.41 praying therein that it was

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necessary to appoint a Commissioner to determine the excess construction

alleged to have been made by the defendant. In the application it was stated

that as one of the reliefs sought was with regard to demolition of excess

construction, appointment of a Commissioner was necessary. This

application was opposed by the defendant on the ground that appointment

of Commissioner would result in collection of evidence.

3.

Shri Deshpande, the learned counsel for the petitioner,

submitted that considering the nature of the suit wherein relief of removal

of excess construction was sought coupled with the location of the septic

tank in relation to easementary right of the plaintiff, it was necessary that a

Commissioner be appointed to ascertain the correct position so as to

facilitate adjudication of the suit. He submitted that if the Commissioner was

appointed to inspect the property in question, the same would not amount to

collection of evidence but would facilitate the proper adjudication of the

suit.

4. Shri Solao, the learned counsel for the respondent, supported

the impugned order. According to him, the intention of the petitioner was to

collect evidence which was not permissible by appointing a Commissioner.

He submitted that the burden was on the petitioner to produce relevant

evidence and therefore the trial court was justified in rejecting the

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application.

5. The plaintiff by amending the plaint had added para 9A in

which it was stated that the defendant had undertaken excess construction

on the northern side of the plot. It was further pleaded that an underground

septic tank had been constructed due to which the rights of the plaintiff were

infringed. A prayer was also made to demolish the construction that was in

contravention of the sanctioned plan. Considering the nature of reliefs

sought in the suit, the appointment of a Commissioner is found necessary in

these facts as the same would facilitate proper adjudication of the prayers

made in the civil suit. If a report of the Commissioner is obtained, it would

not amount to collection of evidence as even otherwise the burden to prove

his case was on the plaintiff. It would therefore be proper to see that a

Commissioner is appointed for ascertaining the construction made by the

defendant on plot no. 11 as compared to the sanctioned plan and also to

inspect the position of the septic tank. The trial court by rejecting the

application misdirected itself on the ground that this could amount to

collection of evidence.

6. In view of aforesaid, the order dated 16.7.2015 passed by the

trial court below Exh.41 is set aside. The trial Court may appoint an

Engineer from the Public Works Department for ascertaining the

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construction made by the defendant on plot no. 11 as compared with the

sanctioned plan and also to inspect the position of the septic tank. The

application below Exh.41 is allowed in aforesaid terms. The petitioner shall

bear cost of appointment of the Commissioner.

The writ petition is allowed in aforesaid terms with no order as

to costs.

JUDGE

Hirekhan

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