Bombay High Court
Farid Khan Chamu Khan And Others vs Majid Khan Rahim Khan on 22 November, 2016
Bench: T.V. Nalawade
1 WP 6334 of 2016
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Writ Petition No. 6334 of 2016
1) Farid Khan s/o Chamu Khan,
Age 65 years,
Occupation : Agriculture.
2) Afsar Khan s/o Abdul Khan,
Age 40 years,
Occupation : Agriculture.
3) Alimar Khan s/o Bane Khan,
Age 50 years,
Occupation : Agriculture.
4) Riyaz Khan s/o Fareed Khan,
Age 40 years,
Occupation : Agriculture.
5) Taher Khan s/o Wahed Khan,
Age 35 years,
Occupation : Agriculture.
All R/o Deolali Chowk,
Beed-by-pass, Aurangabad. .. Petitioners.
Versus
* Majid Khan s/o Rahim Khan,
Age 60 years,
Occupation : Agri. & Business,
R/o Deolali Chowk,
Beed-by-pass, Aurangabad. .. Respondent.
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Shri. Y.B. Pathan, Advocate, for petitioners.
Shri. Punit Mehta, Advocate, for respondent.
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2 WP 6334 of 2016
CORAM: T.V. NALAWADE, J.
DATE : 22 NOVEMBER 2016
ORAL JUDGMENT:
1) Rule. Rule made returnable forthwith. Heard
both sides by consent for final disposal.
2) The petition is filed to challenge the order
made by the learned 3rd Joint Civil Judge, Junior Division,
Aurangabad, on Exhibit 20 in Regular Civil Suit
No.575/2015. The suit is filed for injunction simplicitor by
present respondent. He has prayed for injunction to
prevent the defendants from making encroachment or
causing disturbance in the possession of the plaintiff over
the suit property Gat No. 131 from Northern and Western
sides. Thus, the suit is filed for injunction to protect the
possession.
3) In the application filed for appointment of
Court Commissioner the plaintiff has prayed for following
relief.
3 WP 6334 of 2016
"To appoint T.I.L.R. as Court Commissioner for
measurement of entire Gat No.131 along with the
northern and western boundaries with reference
thereby to demarcate the boundaries and to
report the same along with the map, demarcating
the boundaries particularly the northern and
western boundary or limit of Gat No.131 at
Satara, Taluka and District Aurangabad."
4)
If the prayer made in the application filed for
appointment of Court Commissioner is compared with the
relief claimed in the suit it can be said that the
appointment of Court Commissioner has no connection at
all with the relief of injunction claimed in the suit.
Learned counsel for the respondent placed reliance on a
case reported as
2015(1) Bom.C.R. 267 (Dattatray
Namdev Kalake v. Bapu Bhairu) and submitted that such
relief can be granted in the suit for injunction. Facts of
the reported case were totally different. Then he placed
reliance on a case reported as (2009) 12 SCC 773 (ECE
Industries Ltd. (I) v. S.P. Real Estate Developers (P) Ltd.)
In this case the facts were different and the nature of the
suit was different. In view of the facts of the present case
4 WP 6334 of 2016
and the relief claimed by the plaintiff of aforesaid nature,
this Court holds that appointment of Court Commissioner
was not at all necessary. It is true that suit for
demarcation of boundaries and fixing boundary marks is
tenable but that kind of suit is not filed. Thus, this Court
holds that the trial Court has committed grave error in
making order of appointment of Court Commissioner.
5) In the result, the petition is allowed. The order
made by the trial Court on application Exhibit 20 of
appointment of Court Commissioner is hereby quashed
and set aside. Rule made absolute in those terms.
Sd/-
(T.V. NALAWADE, J. )
rsl
