Bombay High Court

Ramdas Santoba Bodke vs Sandhya Mukhteshwar Dhondge And Others on 8 May, 2024

2024:BHC-AUG:10317

                                           1                           wp 7688.2016


                       IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                  BENCH AT AURANGABAD

                               WRIT PETITION NO. 7688 OF 2016

              .      Ramdas s/o. Santoba Bodke,
                     Age: 58 years, Occu.: Agri.,
                     R/o.: Dhankar Galli, Loha,
                     Taluka - Loha,
                     Distirct - Nanded                           .. Petitioner

                                Versus

              1.     Sow. Sandhya w/o Mukhteshwar Dhondge,
                     Age: 38 years, Occcu.: Household,

              2.     Purshottam s/o Keshavrao Dhondge,
                     Age: 34 years, Occu.: Service,

              3.     Sow. Manisha w/o Purshottam Dhondge,
                     Age: 28 years, Occu.: Household,

                     All R/o.: Bahadarpura, Kandhar,
                     Taluka: Kandhar, District: Nanded

              4.   Bhanudas s/o Santoba Bodke,
                   Age: 53 years, Occu.: Service,
                   R/o.: Dhankar Galli, Loha,
                   Taluka: Loha, District: Nanded                 .. Respondents
                                                 ...
              Advocate for the Petitioner : Mr. Shailendra S. Gangakhedkar
              Advocate for Respondents No.1 to 3 : Mr. Rajendrraa Deshmukkh,
              Senior Advocate a/w. Mr. S. V. Deshmukh i/b. Mr. D. R. Deshmukh
                                                 ...

                                               CORAM : ARUN R. PEDNEKER, J.

                                               Reserved On   :    18.04.2024
                                               Pronounced On :    08.05.2024
                                  2                              wp 7688.2016

JUDGMENT:

1. Heard.

2. By the present petition, the petitioner is challenging the

orders passed on exhibits 7 and 43, dated 02.05.2013 and 10.09.2015,

passed in Regular Civil Suit No.81 of 2010, filed for declaration of

ownership and perpetual injunction respectively, whereby the application

filed by the plaintiffs seeking appointment of the court commissioner for

the measurement of the suit property admeasuring 2 Hector was allowed

and the court commissioner was directed to measure the suit land. The

petitioner is the defendant in R.C.S. No.81 of 2010.

3. Brief facts leading to the filing of the petition can be

summarised as under. The plaintiffs have filed a suit for declaration and

ownership and possession with perpetual injunction restraining the

defendant from causing any obstruction over survey no.90/4 and 90/8

admeasuring 1 Hector each. The defendants also filed counter claim

Exhibit 16 against the plaintiffs claiming injunction from obstruction in

survey no. 90 as well as alienating the suit property of original suit. The

application for temporary injunction filed by the defendants / counters

claimants is partly allowed and the plaintiffs are restrained from

alienating any suit property 90/4 and 90/8 admeasuring 1 Hector each.

Another suit is also filed by the defendants against the 3 wp 7688.2016

plaintiffs challenging the sale deed in favour of the plaintiff towards sale

of 2 Hector of lands bearing special civil suit no.26 of 2012.

4. The application is moved by the plaintiff at Exhibit 7 for

appointment of the court commissioner which was allowed by order

dated 02.05.2013. The petitioner filed an appeal against the said order

before the District Court bearing RJE No.17 of 2013, however, it was

dismissed for default. Thereafter, the plaintiff again moved an application

on 02.07.2015 at Exhibit 43 for issuance of writ to the TILR for

measurement of the suit property in view of the order below Exhibit 7.

Considering the dismissal of the proceedings in RJE No.17 of 2013 filed

by the present petitioner, the said application at Exhibit 43 is allowed by

order dated 10.09.2015. The application Exhibit 43 was not opposed by

the defendant / petitioner and on account of his ill health he could not

file say to the Exhibit 43 and the fresh writ was issued to the court

commissioner for measurement of the suit property directing submission

of report before 30.10.2015. In the order at Exhibit 43 it is observed that

despite of repeated opportunities granted to the defendant he has not

filed his say and it is also observed that since there was an order of the

District Court which was shown to the court commissioner the

commissioner could not carry out the measurement in pursuance of the

order at Exhibit 7, as such, therefore fresh writ to the commissioner was 4 wp 7688.2016

issued after dismissal of the RJE No.17 of 2013, by order dated

10.09.2015. It appears from the record that the writ is also carried out

and the map is prepared and the report is also submitted to the court by

the court commissioner. Thus, the orders on Exhibits 7 and 43 are

challenged in the present writ petition.

5. It is the contention of the petitioner that the TILR appointed

to measure the suit property amounts to collection of evidence for the

plaintiffs. It is the contention of the defendant that where relief claimed

is of removal of encroachment and no relief of demarcation of boundaries

and recovery of possession is prayed the court commissioner cannot be

appointed. It is further the case of the petitioner that the appointment of

the court commissioner in the present case would mean that it is for

collecting evidence, as there is no dispute of boundaries as regards

encroachment. It is further contended by the petitioner that the suit in

question did not contain any boundary dispute, encroachment or relief of

fixation of boundaries, wherein appointment of the court commissioner

would have facilitated the issue in controversy. However, the same is not

in the instant case, as such, the court commissioner ought not to have

been appointed.

6. It can be seen from the pleadings that the plaintiffs have

filed the suit against the defendants for declaration of ownership and 5 wp 7688.2016

possession for survey no.90/4 and 90/8, both admeasuring 1H each,

situated at village Loha. The defendants have filed counter claim and

sought temporary injunction and the defendants claimed that they

become owner and possessor of survey no.90 total admeasuring 15 Acres

by way of registered sale deed and revenue entries are also taken in that

respect. Defendant no.2 has converted the land for non-agricultural

purpose by order dated 05.03.1997. They never sold any land to Baliram

Gaute. The defendant contend that the plaintiffs have prepared false sale

deed no.1518/2000 and 1519/2000 dated 25.05.2000 in respect of land

survey no.90/3 admeasuring 1H each in favour of Baliram Gaute.

Baliram Gaute has executed further sale deeds in favour of the plaintiffs

in respect of the above lands. Baliram Gaute was never owner and

possessor of the lands mentioned in the sale deeds, as such, the plaintiffs

have no ownership over the said properties.

7. From the pleadings of the parties, it is apparent that both the

parties claim title over the suit properties and also claim possession over

the properties. The application for appointment of the court

commissioner filed by the plaintiffs is allowed on the ground that it

would be just to measure survey no.90 admeasuring 2 Hector in order to

decide the real controversy between the parties.

Thus,       the         trial          court    was     of    the      view         that
                                  6                              wp 7688.2016

by appointing the court commissioner the suit properties are required to

be measured. The exercise is already carried out by the court

commissioner and there is huge delay in challenging the same in this

court i.e. challenging the order passed in original application on

Exhibit 7. The TILR has also carried out it's investigation and accordingly

filed it's report and the same is on record.

8. As regards the appointment of the court commissioner under

Order 26 Rule 9 of the CPC, it is a settled law that the court

commissioner cannot be appointed for collection of the evidence at the

instance of the parties. The trial court can appoint the court

commissioner for elucidating the issue at hand.

9. In the instant case, the commissioner is appointed and the