Bombay High Court
Bhanudas Shripati Chaudhari And ... vs Arjun Janu Chaudhari And Another on 17 March, 2021
Bench: R. G. Avachat
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IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 4979 OF 2020
Bhanudas Shripati Chaudhari and others ... Petitioners
Versus
Arjun Janu Chaudhari and another ... Respondents
....
Mr. G. R. Syed, Advocate for the petitioner
Mr. S. N. Gaikwad, Advocate for respondents
....
CORAM : R. G. AVACHAT, J.
RESERVED ON : 11th MARCH, 2021
PRONOUNCED ON : 17th MARCH, 2021
PER COURT :-
. This writ petition is directed against the order dated
29.02.2020 passed by the Civil Judge, Junior Division, Ashti, District
Beed, below application Exh-111 in Regular Civil Suit (RCS)No.373
of 2011. By the impugned order, the application moved by the
plaintiffs for appointment of Court Commissioner for local
inspection, came to be turned down. The plaintiffs are therefore
before this Court in this writ petition.
2. The petitioners filed the suit (RCS No.373 of 2011) for
relief of perpetual injunction against the respondents-defendants,
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restraining them from obstructing their possession over the suit
lands. It is the case of the petitioners that respondent No.2 sold 3
gunthas of land from gut No.252 to respondent No.1 under a
sale-deed dated 16.04.2011. The description of the land purchased
by respondent No.1 shows on to his West to be the suit land Survey
No.416/12 of the petitioners. Respondent No.1 came to the suit land
and attempted to measure it, claiming to be his own. The suit,
therefore, came to be filed.
3. The petitioners moved application (Exh.111) for
appointment of the Deputy Superintendent of Land Records, Ashti,
as Court Commissioner to measure the lands Survey No.416 and 252
with a view to demarcate their boundaries.
The respondents filed reply to the said application and in
no uncertain terms, gave consent for appointment of Court
Commissioner for measurement of the lands.
4. The learned Judge, however, rejected the application on
the ground that recording of evidence in the suit has already been
concluded. Court Commissioner cannot be appointed for collection
of evidence and finding as to who is in possession of the land.
According to the learned Judge, it is not a case of boundary dispute.
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5. Shri G. R. Syed, learned Advocate for the petitioners
would submit that although it is a suit for injunction simpliciter, the
dispute pertains to the location of land/lands and boundaries
thereof. The respondents, in fact, gave consent in no equivocal terms
for appointment of Court Commissioner. The learned Judge ought
not to have rejected the application.
6. Shri S. N. Gaikwad, learned Advocate for the
respondents, would on the other hand, submit that it is not a
boundary dispute. Respondent No.1 has purchased 3 gunthas of land
for valuable consideration. Village Talathi has drawn the map of
Survey No.252/E. The boundaries given in the sale-deed matched
with the boundaries drawn by the Talathi. Mutation entry has also
been effected pursuant to the sale-deed dated 16.04.2011. The
learned Advocate placed on record the relevant documents. He also
relied on a judgment of this Court in the case of Dhondiram Nivrutti
Pawar (since deceased) through L.Rs. Dhanaji Dhondiram Pawar
and others vs. Laxman Khashaba Pawar and others - 2018(2)
Mh.L.J. 255. Learned Advocate ultimately urged for rejection of the
petition.
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7. The suit is for injunction simpliciter. The dispute is,
however, as to location of the lands belonging to the plaintiffs and
the respondents. As such, it takes a colour of a boundary dispute.
The suit lands are the ancestral lands of the plaintiffs. Whereas,
respondent No.1 has purchased 3 gunthas of land from gut No.252
from respondent No.2. A copy of sale-deed is on record. The
description of the land purchased by respondent No.1 given in the
sale-deed shows that to the West side of the said land there is land
belonging to the petitioner No.1 - Bhanudas, while to the East, there
is a road. As such, the suit land Survey No.416/17 and the land
purchased by respondent No.1 are shown to be adjacent to each
other. According to the petitioners, a road, Kada-Dhamangaon-
Pathardi goes through the land Survey No.252 and 416. As such, the
land purchased by respondent No.1 shall not fall adjacent to the land
belonging to the petitioners. A village map is on the record of the
suit (Exhibit-101), whereas a map (Exh.93) relied on by the
respondents has also been on record. The said map was drawn way
back in November 1999 in connection with some other matter. Both
the maps do not match with each other. It has, thus become
necessary to appoint a Court Commissioner for the reasons given in
the application Exh.111. The respondents vide their reply to the said
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application in no uncertain terms, gave their consent for
appointment of Court Commissioner. The respondents, therefore,
cannot be allowed to turn around or blow hot and cold. The learned
Judge, therefore, ought not to have rejected the application for the
reasons on which none of the parties relied on.
8. In the result, the petition succeeds. The same is,
therefore, allowed in terms of prayer clause "B".
9. The Court Commissioner shall do his job in the light of
averments made in the application Exh.111 and reply filed by the
respondents thereof vide Exh.112.
[ R. G. AVACHAT, J. ]
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