Vaishali Kishor Bhakare And ... vs Limbaji Ghanshyam Sabale And ...
2017 Latest Caselaw 398 Bom

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                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
                                   BENCH AT AURANGABAD 

                           WRIT PETITION NO. 5123 OF 2015     

1         Smt. Vaishali w/o Kishor Bhakare
          age 32 years, occ. Household

2         Kum. Vaishanavi d/o Kishor Bhakare
          Age 12 years, occ. Education

3         Vishal s/o Kishor Bhakare
          age 8 years, occ. Education

          Petitioner nos. 2 and 3 are minors u/g of
          Mother i.e. petitioner no. 1

4         Shrishel s/o Bhimrao Bhakare
          age 32 years, oc. Agril

5         Rangrao s/o Shankarrao Bhakare
          age 67 years, occ. Agril

6         Bhagwat s/o Shankarrao Bhakare
          age 77 years, occ. Agril

7         Ramakant s/o Bhagwat Bhakare
          age 39 years, occ. Agril

8         Sow. Sunita W/o Chandrakant Bhakare
          age 44 years, occ. Agril

          All /o Yeli, Tq.  Dist. Latur.                            .. PETITIONERS

VERSUS
 
1         Limbaji s/o Ghanshyam Sabale
          age 67 years, occ. agril

2         Hiralal s/o Keshav Sabale
          age 52 years, occ. Agril

3         Ratan s/o Keshav Sabale
          age 47 years, occ. Agril

4         Gopal s/o Keshav Sabale
          age 38 years, occ. Agril

5         Janak s/o Keshav Sabale
          age 44 years, occ. Agril




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        All r/o Yeli, Tq. & Dist. Latur                         .. RESPONDENTS


Mr.  S.S. Deshmukh, advocate for petitioners.
Mr. A.V. Indrale Patil, advocate for respondents no. 1 to 5.
                                                      =====

                                                    CORAM :  S. B. SHUKRE, J.  

                                                    DATE    :  2nd MARCH,  2017. 
 
ORAL JUDGMENT  :


1.       Rule.  Rule made returnable forthwith.

2. Heard finally by consent of learned counsel for the respective parties.

3. The suit being Regular Civil Suit No. 570/2012 has been filed for

grant of perpetual injunction with direction to defendants not to remove

existing cart way and also restraining defendants from committing

encroachment on the suit property.

4. According to learned counsel for petitioners, such nature of suit

involves a dispute about boundaries as well as issue of demarcation of

boundaries. Therefore, the matter of appointment of Court Commissioner

would be squarely governed by law laid down by the Apex Court in the case

of Haryana Wakf Board Vs. Shanti (2008) 8 SCC 671. He also points out

that learned Single Judge of this Court in the matter of Kolhapuri Lakade

Vs. Yellappa 2011(3) Mh.L.J. 348, has taken a view that when a dispute is

about demarcation of boundaries, following the law laid down by the Apex

Court, the Court Commissioner must be appointed.

wp5123.15.doc

5. The statement is, however, disputed by learned counsel for

respondents. He contends that in the case of Haryana Wakf Board and

Kolhapuri Lakade (supra), the suit was for removal of encroachment which

is not the case here and the suit is for grant of injunction simplicitor.

6. I think learned counsel for respondents is right. The issue involved

in the cases cited supra was one of removal of encroachment, which is not

the issue involved in this case. The prayer is only for grant of perpetual

injunction and nothing more. Therefore, no perversity or patent illegality

could be noticed in the impugned order. There is no merit in the petition.

Petition stands dismissed. Final hearing of the suit is expedited. Rule

discharged. No costs.

( S. B. SHUKRE ) JUDGE

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