Najabai Gana Patil And Others vs Shantabai Vitthal Bagul
2017 Latest Caselaw 6583 Bom

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                IN THE HIGH COURT OF JUDICATURE OF BOMBAY   
                            BENCH AT AURANGABAD

                            WRIT PETITION NO.7444 OF 2014

1. Najabai w/o Gana Patil,
   Age-79 years, Occu-Nil,

2. Babulal s/o Gana Patil,
   Age-49 years, Occu-Agriculturist,

3. Hasarbai w/o Kisan Patil,
   Age-54 years, Occu-Household work,

4. Kesharbai w/o Dharma Patil,
   Age-45 years, Occu-Household work,
   All r/o Udane, Tq. and Dist.Dhule                                  -- PETITIONERS

VERSUS

Shantabai w/o Vitthal Bagul,
Age-59 years, Occu-Politics,
R/o Udane, Tq. and Dist.Dhule                                         -- RESPONDENT

Mr.P.R.Patil, Advocate for the petitioners. Mr.A.S.Sawant, Advocate for the respondent.

                                 ( CORAM : Ravindra V.Ghuge, J.)

                                     DATE     : 29/08/2017

ORAL JUDGMENT : 

1. Rule. Rule made returnable forthwith and heard finally by the

consent of the parties.

2. I have considered the strenuous submissions of the learned

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Advocates for the respective sides who have taken me through the

petition paper book. Mr.Sawant, learned Advocate vehemently

submits that this petition is frivolous and deserves to be dismissed by

imposing costs of Rs.50,000/-.

3. The issue is that the Trial Court has rejected application Exh.166,

seeking appointment of a Court Commissioner, by the impugned

order dated 06/03/2014 in RCS No.20/2005.

4. The petitioners/plaintiffs have moved Exh.166 under Order 26

Rule 9 of the CPC, seeking appointment of a Court Commissioner. The

suit has been filed for seeking injunction and declaration with the

averment that the respondent/defendant has encroached upon the

property of the plaintiffs by erecting a construction to the extent of 8 x

60 feet. The recording of evidence of the plaintiff is over. In order to

render further assistance to the Court, Exhibit 166 is filed for seeking

measurement of the property at plot No.24 in C.S.No.182 so as to have

the correct boundaries and measurement of the suit property before

the Court.

5. Mr.Patil, learned Advocate for the petitioners submits that since

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he is seeking a declaration of ownership and title over Plot No.24, the

exact boundaries of plot No.24 can only be ascertained by the TILR so

that the parties are not compelled to speculate as to which are the

boundaries while executing the decree, in the event the petitioners

succeed in the suit. To clear away all clouds of doubt as regards the

exact boundaries of the suit plot, the TILR can be appointed and this

would also assist the defendant as the defendant would also be

aware of the exact boundaries of the plot in the event the defendant

is held to be the owner of the suit.

6. Mr.Sawant has strenuously submitted that two applications

earlier were rejected by the Trial Court and this is a third application.

7. I do not find that there could be any embargo on the filing of an

application for appointment of a Court Commissioner unless it is

noticed that a party is repeatedly filing identical applications without

any change in circumstances.

8. The first application Exhibit 39 for appointment of Court

Commissioner was rejected on 27/04/2005 which was prior to the

framing of the issues and the commencement of the Trial. The

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plaintiffs' evidence was recorded on 15/04/2006. Application Exh.156

was filed for appointment of a Court Commissioner and the same was

rejected in the light of the objection of the defendant that the

application cannot be entertained because a Gramsevak is sought to

be appointed. The defendant has specifically submitted her say on

05/09/2012 that until the plaintiffs file an application for appointment

of a D.S.L.R. or T.I.L.R., the measurement of the suit property cannot be

carried out at the behest of the Gramsevak. For the said reason,

Exhibit 156 has been rejected.

9. The petitioners/plaintiffs have now moved Exh.166 for

measurement of the suit property so as to have the exact size of the

plot and its boundaries before the Trial Court. This was also the view of

the defendant when it submitted its say on 05/09/2012 below

application Exh.156 while opposing the appointment of a Gramsevak

as a Court Commissioner.

10. Considering the above, I find that the impugned order is

unsustainable as the Trial Court has concluded that the discretionary

relief of appointment of a Court Commissioner cannot be granted to

the plaintiffs. The Trial Court should have kept in mind the law laid

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down by the Hon'ble Apex Court in the matter of Haryana Wakf Board

Vs. Shanti Sarup and others (2008)8 SCC 671 and the judgments

delivered by this Court in the matter of Kolhapuri Bandu Lakade Vs.

Yallappa Chinappa Lakade (Decd.Thru.Pooja @ Poojari Y.Lakade and

others) [2011(3) Bom.C.R. 807], Bento Antonio Gomes alias Antonio

Bento Gomes Vs. Rosario Salvador Carneiro and others [2014(3) All MR

790 = 2014(4) Mh.L.J.366] and Kashinath Ramkrishna Chopade Vs.

Purushottam Tulshiram Tekade and others [2005(4) All MR 519 = 2005(3)

Mh.L.J. 471].

11. Considering the above, this petition is allowed. The impugned

order dated 06/03/2014 is quashed and set aside and application

Exh.166 is allowed to the extent of the measurement of the suit plot

No.124 and fixing the exact boundaries of the said plot.

12. The Trial Court shall issue necessary orders to the T.I.L.R. Dhule

within 2 (two) weeks from today and the charges of the Court

Commissioner shall be borne by the petitioner. It shall be paid as and

when the plaintiff is so directed. After the T.I.L.R. submits its report and

map, the litigating parties are at liberty to deal with it, as is permissible

in law.

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13. Rule is made partly absolute in the above terms.

( Ravindra V.Ghuge, J.)

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