Bombay High Court
Dayalu S/O Daryaji Kamble vs Digambar S/O Haribhau Gote on 30 January, 2018
Bench: Z.A. Haq
Judgment 1 wp7700.2017.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 7700/2017
PETITIONER : Dayalu S/o Daryaji Kamble
Age about 57 years,
Occ. Agriculturist
R/o Devthana (Bk.),
Tq. & Distt. Washim
...V E R S U S...
RESPONDENT : Digambar S/o Haribhau Gote
Age about 56 years,
Occ. Agriculturist,
R/o Tondgaon, Tq. & Distt. Washim
===================================
Shri S.D. Chande, Advocate for the petitioners
Shri V. K. Paliwal, Advocate for the respondent
===================================
CORAM:- Z.A. HAQ,J.
th
DATED :- 30 JANUARY, 2018
ORAL JUDGMENT :-
Heard.
Rule. Rule made returnable forthwith.
2] The petitioner-plaintiff has filed the civil suit praying
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for decree for permanent injunction restraining the respondent-
defendant from interfering with possession of the plaintiff over the
suit land. The defendant has opposed the claim of the plaintiff by
filing written statement. The defendant has made counter claim
and has prayed for decree for possession of the suit land.
The trial progressed and after framing of the issues, the
plaintiff filed the application (Exh. 18) under Order XXVI Rule 9 of
the Code of Civil Procedure praying that Court Commissioner be
appointed to carry out the measurement of Gat No. 347 and
submit report before the Court. This application is dismissed by
the impugned order.
3] The impugned order is supported by the defendant on
the ground that the plaintiff has got the land in question measured
earlier and the claim of the plaintiff is based on the report
submitted by the Deputy Superintendent of Land Records after the
measurement was done on 18/02/2013. The advocate for the
defendant has pointed out that earlier also the measurement was
undertaken by the Taluka Inspector of Land Records, Washim on
16/09/2009 and this matter was taken up by the plaintiff further
and finally was decided by the Deputy Director of Land Records,
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Amravati on 11/10/2012.
4] Be that as it may, considering the nature of dispute
between the parties, I am of the view that if the prayer made by
the plaintiff for appointment of Court Commissioner is granted,
the report of the Court Commissioner will be helpful to the Court
in deciding the controversy and the rival claims.
Hence, the following order is passed:-
O R D E R
1] The impugned order is set aside.
2] The application (Exh. 18) filed by the plaintiff is
allowed.
3] The trial Court shall appoint a Court
Commissioner and obtain report on record.
4] The petitioner-plaintiff shall deposit the amount
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towards necessary charges for execution of commission,
before the trial Court within eight weeks.
The writ petition is allowed in the above terms. In the
circumstances, the parties to bear their own costs.
JUDGE
Ansari
