Rajesh S/O Madhukar Kanhed And ... vs Municipal Council, Washim, ...
2021 Latest Caselaw 4194 Bom

                                                                           35.wp714.2018.odt
                                              1

                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          NAGPUR BENCH : NAGPUR

                               WRIT PETITION NO.714/2018

 1.       Rajesh s/o Madhukar Kanhed,
          Aged about 50 years,
          Occu.: Business.

 2.       Madhukar Ratansa Kanhed,
          Aged about 80 years,
          Occ. Agriculturist,
          Both R/o. Nandipeth, Washim,
          Tq. & Dist. Washim.                                ..... PETITIONERS
                                                                  (Ori. Plaintiffs)

                                     // VERSUS //

 1.     Municipal Council, Washim,
        through Chief Officer, Municipal Council,
        Washim.

 2.     Satish Paraji Bidawe,
        Aged about 50 years,
        Occ. Service.

 3.     Prakash Paraji Bidawe,
        Aged about 50 years,
        Occ. Service,
        2 & 3 R/o. Nandi Peth, Near Nagar
        Parishad, Washim, Tq. And Dist. Washim.                  .... RESPONDENTS
                                                                      (Ori Defendant)

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          Mr. Zeeshan Haq, Advocate h/f Mr A. R. Deshpande, Advocate for
          petitioners.
          Mr. A. M. Ghare, Advocate for respondent no.1.
          Mr. Onkar A. Ghare, Advocate for respondent nos.2 and 3.
 ---------------------------------------------------------------------------------------



                                  CORAM :         AVINASH G. GHAROTE, J.

                                  DATED   :       08/03/2021




                                                                      35.wp714.2018.odt

 ORAL JUDGMENT : (PER:- AVINASH G. GHAROTE, J.)


 1]                Rule. Rule made returnable forthwith.


 2]                Heard finally by consent of the learned counsel appearing

 for the parties.


 3]                Heard Mr. Zeeshan Haq, learned counsel for the petitioners.

Mr. Ajay Ghare, learned counsel for the respondent no.1 and Mr. Onkar

Ghare for respondent nos.2 and 3.

4] In a suit for removal of encroachment filed by the

petitioners, an application for appointment of Commissioner under

Order XXVI Rule 9 of the Code of Civil Procedure for measurement of the

encroachment, as indicated in prayer clause (A) of the plaint was made

which came to be rejected by the impugned order.

5] Mr. Zeeshan Haq, learned counsel for the petitioners

submits that the rejection is improper and the reason thereof, that the

application is filed for collecting evidence through the medium of the

Court is not borne out. He submits that in a case of encroachment, it is

always necessary, for the encroachment as alleged, to be jointly

measured by appointment of a Court Commissioner which would result

in warding off unnecessary controversies and would entail a decision of

the suit upon the factual position as revealed from the report.

35.wp714.2018.odt

6] Mr. Ajay Ghare, learned counsel for the respondent no.1

and Mr. Onkar Ghare, learned counsel for the respondent nos. 2 and 3

opposed the prayer, by inviting my attention to the plaint map at page

20, to indicate, that there is no dispute about the ownership of the

properties of the respondent nos.2 and 3 and in any case, the relief as

sought in prayer clause (B) of the plaint was not maintainable. He

submits that the entire attempt is to collect evidence without discharging

the burden placed upon the plaintiffs to prove the encroachment.

7] Having heard the learned counsel for the parties, I am of

the considered opinion that in a case for removal of encroachment it

would always be preferable for determination of the actual controversy,

to have a Commissioner report, by appointing a Court Commissioner, to

measure the alleged encroachment, which would set at rest the

controversy in the suit. The application for appointment of

Commissioner merely intends to ensure this position. The impugned

order, is therefore, quashed and set aside and the application for

appointment of Court Commissioner is accordingly allowed.

Rule is made absolute. No order as to costs.

JUDGE Sarkate.