Bombay High Court

Sanjay Kisan Thorat And Ors vs Ramchandra Parsu Thorat And Anr on 23 January, 2018

Bench: Dr. Shalini Phansalkar-Joshi

Dixit
               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   CIVIL APPELLATE JURISDICTION

                        WRIT PETITION (STAMP) NO.35269 OF 2017

        1. Sanjay Kisan Thorat,                                       ]
            Age 40 years, Occ. Agriculture                            ]
        2. Mohan Ananda Thorat,                                       ]
            Age 52 years, Occ. Agriculture                            ]
        3. Suresh Ananda Thorat,                                      ]
            Age 50 years, Occ. Agriculture                            ]
        4. Sambhaji Rajaram Thorat,                                   ]
            Age 48 years, Occ. Agriculture                            ]
        5. Abaso Tanaji Thorat,                                       ]
            Age 25 years, Occ. Agriculture                            ]
        6. Annaso Balasaheb Thorat,                                   ]
            Age 32 years, Occ. Agriculture                            ]
            All residing at Sawade (East),                            ]
            Tal. Karad, Dist. Satara.                                 ] .... Petitioners
                       Versus
        1. Ramchandra Parsu Thorat,                                   ]
            Age 58 years, Occ. Agriculture                            ]
        2. Vilas Parsu Thorat,                                        ]
            Age 50 years, Occ. Agriculture                            ]
            Both residing at Sawade (East),                           ]
            Tal. Karad, Dist. Satara.                                 ] .... Respondents


        Mr. Kalpesh U. Patil for the Petitioners.
        Mr. Chandrakant P. Yadav for the Respondents.


                                  CORAM : DR. SHALINI PHANSALKAR-JOSHI, J.

                                  DATE          : 23 RD JANUARY 2018.


        WP(St.)-35269-17.doc


 ORAL JUDGMENT :

1. Rule. Rule is made returnable forthwith. Heard finally, at the stage

of admission itself, by consent of Mr. Patil, learned counsel for the

Petitioners, and Mr. Yadav, learned counsel for the Respondents.

2. By this Writ Petition, filed under Article 227 of the Constitution of

India, the Petitioners are challenging the order dated 28 th November

2017 passed by the 6th Joint Civil Judge, Junior Division, Karad, below

"Exhibit-39" in Regular Civil Suit No.311 of 2017.

3. The application at "Exhibit-39" was filed by the Respondents-

Plaintiffs for appointment of T.I.L.R. as a 'Court Commissioner', to bring

on record the factual position, like the existence of house, bio-gas, toilet,

open space, agricultural land, two water chambers, pipeline, trees of

Mango and Coconut etc. This application was opposed by the Petitioners

herein contending that, Respondents are trying to collect evidence by

appointment of 'Court Commissioner' and the suit land is already

measured by T.I.L.R. himself.

4. The Trial Court, after hearing learned counsel for both the parties,

was pleased to hold that, the appointment of T.I.L.R. to measure the

property would help it to determine the real controversy between the

parties and it is necessary to elucidate the real dispute. Therefore, the

appointment of T.I.L.R. as 'Court Commissioner' is necessary to measure

WP(St.)-35269-17.doc

the suit property. Accordingly, the Trial Court allowed the said

application and also directed the T.I.L.R. not only to measure the

properties bearing Gat Nos.34 and 197, but also to inspect and mention

in his report the existence or otherwise of house, bio-gas, toilet, open

space, agricultural land, two water chambers, pipeline, trees of Mango

and Coconut etc.

5. Being aggrieved by this order, the submission of learned counsel

for the Petitioners is that, the impugned order passed by the Trial Court

is against the express legal position laid down by this Court in number of

its Judgments that, appointment of 'Court Commissioner' cannot be

made for collection of evidence. Here in the case, it is submitted that, the

Respondents are expressly doing so and hence, the impugned order

passed by the Trial Court needs to be quashed and set aside.

6. Per contra, learned counsel for the Respondents has supported the

said order for the reasons stated therein and also on the count that, in

order to decide the real controversy between the parties, the

appointment of the 'Court Commissioner' is utmost necessary to bring on

record the existing situation.

7. The facts of this case reveal that, Respondents herein have filed a

Suit simplicitor for injunction stating that, they are in peaceful

possession of the suit land and the Petitioners-Defendants be restrained

WP(St.)-35269-17.doc

from causing obstruction to their possession in the suit property. In

paragraph No.1 of the plaint, Respondents have described, in detail, the

suit property, which is an area admeasuring 15 R, on the Eastern side of

the land bearing Gat No.34 and in the said land, it is stated that, they are

having their house property, constructed in bricks and stones with tin-

sheets as a roof; then, one more house property of tin-sheets, the cattle-

shed, the bio-gas, the toilet, the open space, the agricultural land, two

water chambers, pipeline, trees of Mango and Coconut etc. They have

further stated in the plaint that, the Petitioners herein have got their

land bearing Gat No.197 measured and on the basis of the same, they are

causing obstruction to the Respondents' possession in the suit land.

8. Along with the Suit, Respondents have also filed an application for

interim injunction at "Exhibit-5". That application is yet to be decided

and at this stage, this application at "Exhibit-39" is filed by the

Respondents for appointment of T.I.L.R. as 'Court Commissioner', in

order to bring on record existence of their house, bio-gas, toilet, open

space, agricultural land, two water chambers, pipeline, trees of Mango

and Coconut etc. A specific prayer is made in the said application that,

the 'Court Commissioner', so appointed, be directed to note the existence

of their house, bio-gas, toilet, open space, agricultural land, two water

chambers, pipeline, trees of Mango and Coconut etc. in his map. Along

with it, an additional prayer is also made that the 'Court Commissioner'

WP(St.)-35269-17.doc

may also be directed to inspect the lands bearing Gat Nos.34 and 197

and fix their boundaries.

9. Thus, though the prayer for fixing of the boundaries in respect of

the lands bearing Gat Nos.34 and 197 is made, the material produced on

record shows that, an endeavour to that effect is also made. There is a

map drawn by the T.I.L.R. himself, fixing the boundaries of the lands

bearing Gat Nos.34 and 197. The said map is produced on record, which

shows that, inspection and measurement of the lands was done on 18 th

November 2016, just before filing of the Suit. In such situation, the

application filed on the pretext of fixing the boundaries of the lands

bearing Gat Nos.34 and 197, does not appear to be correct.

10. The main intention and object of the Respondents in filing such

application appears to be, only to bring on record the existence of the

house, bio-gas, toilet, open space, agricultural land, two water chambers,

pipeline, trees of Mango and Coconut etc. In respect of these very

matters, Respondents are seeking the relief of interim injunction and in

order to get that relief, they want to bring this evidence on record about

its location and existence.

11. Hence, as rightly submitted by learned counsel for the Petitioners,

the law in this respect is fairly well settled, as held by this Court time

and again and also in the authority relied upon by learned counsel for

WP(St.)-35269-17.doc

the Petitioners that of Dnyandeo Vithal Salke & Ors. Vs. Dagdu Kadar

Inamdar, 2017 (3) Mh.L.J. 314, that,

"The appointment of 'Court Commissioner', even that of T.I.L.R., to submit the factual report as regards possession or user of the land is amounting to collection of evidence and it is not permissible in law."

12. When the Respondents are coming before the Court with a specific

case of the existence of their house, bio-gas, toilet, open space,

agricultural land, two water chambers, pipeline, trees of Mango and

Coconut etc., the burden lies upon them to prove the said existence and

their location. They cannot, under the pretext of appointment of T.I.L.R.

as a 'Court Commissioner', when the measurement of the lands is

already done at their instance only and the boundaries are also fixed,

seek appointment of 'Court Commissioner' to bring on record the factual

position at the site, so as to help them in proving their case for interim

injunction. The Trial Court has not considered this settled position of law

and, therefore, the impugned order passed by the Trial Court needs to be

quashed and set aside.