Bombay High Court
Smt. Kamlabai Atmaram Patil And ... vs Shri Kanchan Gajanan Patil And Ors on 18 November, 2022
Bench: Madhav J. Jamdar
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 12526 OF 2022
Smt. Kamlabai Atmaram Patil & Ors. ...Petitioners
Versus
Shri. Kanchan Gajanan Patil & Ors. ...Respondents
Mr. Satyajeet Joshi and Mr. Nachiket H. Tarade, for the Petitioners.
CORAM : MADHAV J. JAMDAR, J.
DATED : 17th NOVEMBER 2022
P.C. :
1. Heard Mr. Satyajeet Joshi, learned counsel appearing for
the Petitioners.
2. The challenge in this petition is to the order dated 16 th
July 2022 passed by the learned Joint Civil Judge, Junior
Division Palghar below Exhibit 32 in Regular Civil Suit No.118
of 2021. By the impugned order, Court Commissioner has been
appointed.
3. It is the contention of Mr. Joshi that as admittedly there
is encroachment, Court Commissioner need not be appointed.
He states that the suit is at the stage of Exhibit 5 application
and therefore, this is not a proper stage to appoint the Court
Commissioner.
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4. In the judgment between Kashinath Chindhuji Shastri vs.
Haribhau Nathuji Bawanthade1, it has been held that where
there is dispute about an encroachment or dimension of a site,
the first essential is to get an agreed map and if the parties
cannot agree on one, a Commissioner must be appointed to
prepare the same.
5. This Court in the judgment of Kolhapuri Bandu Lakade
vs. Yallappa Chinappa Lakade2 on the basis of judgment of
Supreme Court in the case of Haryana Waqf Board vs. Shanti
Sarup & Ors.3, held that in the case of demarcation of the
disputed land, it is appropriate for the Court to direct the
investigation by appointing a Local Commissioner as provided
under Order XXVI Rule 9 of the CPC. In the said judgment it has
been clarified that although the appointment of Court
Commissioner in such a dispute would assist the Court in
arriving at the just decision, it has been consistently observed
that report of the Court Commissioner would not be conclusive.
It was further held that merely because a Court Commissioner
is appointed, it will not prejudice the interest of either of the
1 2004 (2) Mh. L.J. 722
2 2011 (3) Mh. L.J. 348
3 2008 (8) SCC 671
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parties. It has been held that if any of the parties is aggrieved
by the report of the Court Commissioner, an opportunity would
be available to that party to cross examine the Court
Commissioner and to point out as to how his conclusions were
not correct. It has further been observed that the party who
was not aggrieved would also prove how his conclusions are
correct.
6. The first submission of Mr. Joshi that as far as
encroachment is concerned, the same is admitted position is
not correct. In the plaint Respondents-Plaintiffs have stated in
para 8 that Gajanan and Harishchandra about 60 years back
divided the property and they are in possession of the same.
However, in the counter claim, it is the contention of the
Petitioner-Defendant that there is encroachment.
7. Second submission of Mr. Joshi that the Court
Commissioner can be appointed at the time of trial but not at
the time of hearing of Exhibit 5 application has no substance.
There is nothing to indicate in Order XXVI Rule 9 to indicate
that said power can be exercised only at the stage of trial. If at
the stage of Exhibit 5 also if Court deems fit that actual
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situation on the site in question is to be brought on record,
which will assist the Court in passing the order on Injunction
Application bearing Exhibit 5, then there is no impediment in
granting such order. However, it is needless to observe that
before the report of the Court Commissioner also the Trial
Court is free to take decision regarding interim order on the
basis of material available on record. In view of this, no
interference is called for in the impugned order dated 16 th July
2022.
8. The Writ Petition is disposed of with no order as to costs.
[
[MADHAV J. JAMDAR, J.]
