Hemant Vasantrao Jagtap vs Hon.Collector, Pune And Ors
2021 Latest Caselaw 1886 Bom

                Dusane                                  1/4                24 wp 11479.16.doc

                                    IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                            CIVIL APPELLATE JURISDICTION
Bhalchandra
G. Dusane
                                           WRIT PETITION NO.11479 OF 2016
Digitally signed by
Bhalchandra G.
Dusane
Date: 2021.02.02
18:23:36 +0530


                      Hemant Vasantrao Jagtap                 ....   Petitioner

                              Vs.

                      Hon'ble Collector, Pune & Ors.          ....     Respondents


                      Mr. Bhooshan Walimbe i/by Savita Prabhune for Petitioner.
                      Mrs. Vaishali Nimbalkar for Respondent Nos. 1 to 3.
                      Mr. Abhijeet Kadam for Respondent No. 4.


                                                 Coram : NITIN W. SAMBRE, J.

Date : 28TH JANUARY, 2021 P.C.:

1. This Petition is directed against the order below Exhibit 31

passed in Special Civil Suit No.64 of 2012 by the Civil Judge, Senior

Division, Baramati, whereby the prayer of Petitioner for appointment of

T.I.L.R., as Court Commissioner under Order XXVI, Rule 9 of C.P.C. to

measure his land bearing Gat No. 10, came to be rejected.

2. The Petitioner-plaintiff initiated the suit for declaration,

possession and mandatory injunction.

Dusane 2/4 24 wp 11479.16.doc

3. In the said plaint, in paragraph 7, it is specifically pleaded

by the Plaintiff that the defendants have encroached upon his part of

the land, which was measured by him being a technically qualified

person.

4. In the said suit, the other prayers of the Petitioner viz.

possession of the encroached portion, direction to Defendant Nos. 2 to

3 to measure Block (Gat) No.10 i.e. the suit property.

5. Learned counsel for the Petitioner in the aforesaid

background would urge that the orders impugned is liable to be

quashed and set aside as the application for appointment of Court

Commissioner cannot be termed as one which was for the purpose of

collection of the evidence. He would then draw support of the

judgments of this Court in the matter of Bhupedra s/o Bhagwat Turkar

Vs. Homraj S/o Zituji Meshram, reported in 2014 (4) Mh. L.J., page

231 and also in the matter of Malhar s/o Ganpat Bokerphod Vs. Shivaji

s/o Vishwanath Pawal, reported in 2014 (4) Mh. L.J. page 237, so as to Dusane 3/4 24 wp 11479.16.doc

submit that the appointment of Court Commissioner in the case of

dispute related to boundary of the suit property will help the Court in

reaching to a proper conclusion. As such, he would urge that the

orders impugned is liable to be quashed and set aside by granting

application, Exhibit 31.

6. On the contrary, learned counsel for the Respondent

supports the orders impugned.

7. Considered rival submissions.

8. The final relief claimed by the Petitioner is in regard to the

directions to the Respondent to measure the land Gat No.10, out of

which, the suit property is carved out as is described in Schedule-I to

the plaint. If the said prayer is compared with that the prayer made in

an application for appointment of the Court Commissioner viz. Exhibit

31, it can be easily inferred that grant of the said application will result

in, decreeing the suit of the plaintiff in terms of prayer clause (1).

9. As such, the relief of appointment of Court Commissioner is

the final relief claimed in the plaint and that being so the Court below

has right in rejecting the prayer at an interim stage.

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10. Apart from above, it is for the Petitioner-Plaintiff to

establish his claim in the suit as regards encroachment carried out by

the Respondent. It is apparent from the conduct of the Petitioner that

by way of this interim relief application, he is praying for grant of final

relief claimed in the suit. Present proceedings are initiated for collection

of the evidence, so as to establish his case pleaded in the plaint.

11. It is then to be noted that these orders of rejection of

appointment of Court Commissioner at an interim stage needs to be

upheld having regard to the fact that at the relevant time, i.e. at the

time of passing decree in the matter, if the Court is satisfied, the Court

may consider the prayer of the Petitioner on that behalf.

12. In the aforesaid background, no case for interference in the

interim order is made out.

13. The petition is dismissed.

( NITIN W. SAMBRE, J. )