Bombay High Court
Vitthal Rama Kumbhar vs Ram Shankar Metkari And Others on 8 June, 2017
Bench: R.V. Ghuge
WP/9830/2014
1
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 9830 OF 2014
Vitthal Rama Kumbhar
Age 70 years, Occ. Agriculture,
R/o Tawashigad, Tq. Lohara,
District Osmanabad. ..Petitioner
Versus
1. Ram Shankar Metkari
Age 60 years, Occ. Agriculture,
R/o Tawashigad, Tq. Lohara,
District Osmanabad.
2. Maruti Shankar Metkari
Age 45 years, Occ. Agriculture,
R/o Tawashigad, Tq. Lohara,
District Osmanabad.
3. Venkat Laxman Metkari
Age 30 years, Occ. Agriculture,
R/o Tawashigad, Tq. Lohara,
District Osmanabad.
4. Gajanan Ram Metkari
Age 30 years, Occ. Agriculture,
R/o Tawashigad, Tq. Lohara,
District Osmanabad.
5. Pema Dhondiba Gaikwad
Age 80 years, Occ. Agriculture,
R/o Tawashigad, Tq. Lohara,
District Osmanabad.
6. Tulshiram Pema Gaikwad
Age 59 years, Occ. Agriculture,
R/o Tawashigad, Tq. Lohara,
District Osmanabad.
7. Dhondiram Pema Gaikwad
Age 55 years, Occ. Agriculture,
R/o Tawashigad, Tq. Lohara,
District Osmanabad.
::: Uploaded on - 09/06/2017 ::: Downloaded on - 10/06/2017 00:57:36 :::
WP/9830/2014
2
8. Govind Pema Gaikwad
Age 52 years, Occ. Agriculture,
R/o Tawashigad, Tq. Lohara,
District Osmanabad. ..Respondents
...
Advocate for Petitioner : Shri Dodya S.G.
Advocate for Respondents : Shri Gunale V.D.
...
CORAM : RAVINDRA V. GHUGE, J.
Dated: June 08, 2017
...
ORAL JUDGMENT :-
1. Heard learned Advocates for the respective parties at length.
2. Rule.
3. By consent, Rule is made returnable forthwith and the petition
is taken up for final disposal.
4. The petitioner is aggrieved by the order dated 6.9.2014, by
which, application Exhibit 39, filed by the petitioner / plaintiff in
RCS No.35 of 2014 for seeking appointment of a Court Commissioner
has been rejected.
5. Shri Gunale has relied upon the judgment of this Court in the
matter of Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare
and others [2001 (1) Bom. C.R. 800] and Shri Efigenio Dias and
WP/9830/2014
another Vs. Shri Malaquias D'Costa and others [2002(2) Mah.L.J. 209].
6. There is no dispute that the petitioner has preferred a suit for
permanent injunction with regard to the peaceful possession over
land S.No. 37 to the extent of 1 Hectare 74 Ares along with 1/3 rd
share in the well situated at village Tawashigad, Tq. Lohara, District
Osmanabad and for fixation of the boundaries by the measurement of
the plaintiff's share out of S.No.37, in all admeasuring 4 acres and 4
gunthas.
7. The issues have been cast in the matter and the trial,
therefore, can be said to have been commenced.
8. The plaintiff moved an application Exhibit 39, invoking Order
XVI Rule 9 of the Code of Civil Procedure, wherein, he has been
specifically prayed that the TILR / Deputy Director of Land Records,
be appointed as the Court Commissioner to measure the suit land as
per the schedule attached to the plaint, to the extent of 1 Hectare
and 74 Ares i.e. 4 acres 14 gunthas and fix the boundaries. I find that
the said prayer is in tune with the claim put forth by the petitioner
vide his plaint.
9. The defendants have submitted their say and have opposed
the application for appointment of Court Commissioner, primarily, on
WP/9830/2014
the ground that the boundaries mentioned by the plaintiff are false,
imaginary and disputed and the share of land mentioned by the
plaintiff in the plaint is not possessed by him. It was further stated
that the Court Commissioner cannot be appointed for finding out who
is in possession or to indicate which portion is possessed by which of
the litigants.
10. The impugned order, which is cryptic in nature, running into
four sentences, indicates that the trial Court was convinced that the
petitioner has sought appointment of a Court Commissioner for
proving his possession and that his suit was simpliciter for injunction.
11. After considering the extensive submissions of the learned
Advocates, upon going through the record available and on
considering the view taken by this Court in the reports cited, I find
that the trial Court has misdirected itself while passing the impugned
order. The application has been rejected for the reason that the suit
is for simpliciter injunction and the plaintiff is seeking appointment
of Court Commissioner for proving his possession. The suit is not for
simpliciter injunction and in fact is for protecting 1/3 rd share in the
well situated in the field and for fixing boundaries after measuring
the entire land of S. No. 37 admeasuring 4 acres 4 gunthas. It is also
obvious that the petitioner had only claimed for measurement of the
land of 4 acres 14 gunthas in S. No.37 and fix the boundaries in the
WP/9830/2014
said application.
12. This Court, in the cases of Sanjay Namdeo (supra) and Shri
Efigenio Dias (supra), has dealt with the issues of collecting evidence
with regard to possession and for searching an alternate route. The
facts and pleadings in both these cases are quite different than those
before this Court.
13 Considering the above, this petition is partly allowed. The
impugned order dated 6.9.2014 is quashed and set aside. Application
Exhibit 39 is allowed to the following extent:-
(A) The trial Court shall direct the TILR / Deputy Director
Land Records, Taluka Lohara, District Osmanabad to act as a
Court Commissioner and to measure the suit land,admeasuring
1 Hectare and 74 Ares in S.No.37 by following the due
procedure and taking into account the revenue records
pertaining to the said Survey No.37.
(B) The Court Commissioner shall issue notices to the all
the litigating sides and carry out the measurement and
accordingly fix the boundaries and submit a map along with his
report within a period of two months from the date of his
appointment by the trial Court.
WP/9830/2014
(C) Needless to state, the litigating sides are at liberty to
deal with the report and map submitted by the TILR / Deputy
Director Land Records, Taluka Lohara, District Osmanabad as is
permissible under the Code of Civil Procedure.
14. Rule is made partly absolute in the above terms.
( RAVINDRA V. GHUGE, J. )
...
akl/d
