Bombay High Court
Laxman Vishnu Aher And Anr vs Rameshwar Rangnath Aher on 14 February, 2025
2025:BHC-AS:7650
Digitally signed
by ANANT 4.WP.11768.2023 C.doc
ANANT KRISHNA
NAIK
KRISHNA Date:
NAIK 2025.02.15 IN THE HIGH COURT OF JUDICATURE AT BOMBAY
16:52:53
+0530 CIVIL APPELLATE JURISDICTION
WRIT PETITION NO. 11768 OF 2023
1. Laxman Vishnu Aher )
Age: 43 years, Occu: Agri, )
R/o. Deopur, Taluka Niphad )
District Nashik )
2. Mr. Hanumant Vishnu Aher )
Age: 42 years, Occu: Agri, )
R/o. Deopur, Taluka Niphad, )
District Nashik )
3. Smt. Latabai Vishnu Aher )
Age: 62 years, Occu: Agri )
R/o. Deopur, Taluka Niphad )
District Nashik ) ...Petitioners
Versus
Mr. Rameshwar Rangnath Aher )
Age: 35 years, Occu: Agri. )
R/o. Deopur, Taluka Niphad, District Nashik ) ...Respondent
*****
Mr. Narayan G. Rokade a/w. Mr. Siddharth R. Ghodke, Mr Prashant Mane,
Mr. A. Suryawanshi, Mr. Harishchandra Jadhav for the Petitioners.
Ms. Pranita P. Hingmire for the Respondent.
*****
CORAM : M. M. SATHAYE, J.
DATED : 14th FEBRUARY, 2025
JUDGMENT:
1. Rule. Rule made returnable forthwith. Learned Counsel for the
4.WP.11768.2023 C.doc
Respondent waives service. Heard finally by consent of the parties.
2. The Petitioners/Original Defendants are challenging the order dated
12/06/2023 passed below Exh. 53 in R.C.S. No. 302 of 2021. By the said
impugned order the Application of the Respondent/Plaintiff for the
appointment of the Court Commissioner is allowed.
3. The dispute between the parties is in respect of declaration of share in
the water that can be drawn from the well situated at Gut No. 234 Village
Deopur, Tal. Niphad, Dist. Nashik. Suit is filed by the Respondent
fordeclaration of 1/3rd share in the water from the well in the suit property
and for perpetual injunction restraining the Petitioners/Defendants from
disturbing or obstructing that right.
4. Records show that Respondent's application below Exhibit-5 seeking
interim injunction against the Petitioners not to disturb the Respondent from
exercising said right is pending. It is common ground before the Court that
issues are not yet framed in the suit.
5. Interestingly at such stage, when the interim injunction application is
pending and the trial has not commenced, the Respondent/Plaintiff filed as
many as 5 affidavits of witnesses in support of his case. In answer, the
Petitioners filed as many as 4 affidavits of the witnesses opposing the case of
the Respondent/Plaintiff.
4.WP.11768.2023 C.doc
6. In the impugned order, the learned Trial Court has clearly stated this
situation that the affidavits in support of either side are such that necessary
conclusion cannot be drawn. It is word against word. Record also shows that
a Junior Engineer from the Electricity Company was summoned, who has
filed the application stating therein that the documents about concerned
electricity connection to the motor, are not traceable. This aspect is referred
and noted in paragraph 5 of the impugned order. Faced with such situation,
the learned Trial Court exercised its discretion and the application has been
allowed appointing the Court Commissioner for inspection and filing report
about water supply to the Plaintiff's property from the well.
7. The learned Counsel for the Petitioners, relying on the judgments of
Ramkrishna Santu Kakad vs Reojee Sahadu Kakad & Anr. 1 and Shantaram
Dattatray Kekan & Ors. vs Bhausaheb Karbhari Kekan & Ors2 submitted that
the impugned order could not have been passed appointing the Court
Commissioner at the stage where the Application Exhibit - 5 is pending and
when the Trial has not commenced. He submitted that if the Court finds
after evidence is led that the appointment of the Court Commissioner is
necessary, then the such order can be passed.
8. The learned Counsel for the Respondent on the other hand supported
1 High Court of Bombay in WP/2749/2012 dated 04/03/2013
2 2023(1) ALL MR 437
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the impugned order. She submitted that both the Plaintiffs and Defendants
have filed multiple affidavits in support of their rival claim and therefore it
was almost the same situation that the Court would have faced if the Trial
had started. Therefore, it is submitted that the appointment of the Court
Commissioner is justified.
9. I have considered the rival submissions. No doubt the stage of the suit
is that, hearing of interim injunction application is pending. The proposition
of law as culled out by the judgments relied upon by the Petitioners applies
to the case at hand. It is necessary to note that this situation has arisen
because both the parties have chosen to file affidavits in support of the rival
claims of as many as 5 witnesses from the Plaintiffs' side and 4 witnesses
from the Respondents' side and the Court was in a peculiar situation, where
appointment of the Court Commissioner was found necessary. Except for the
stage of the suit at which order is passed, I do not find any infirmity or
illegality in the impugned order, in peculiar facts of this case.
10. However in view of the judgments relied, only on the ground that
interim injunction application is pending and the issues and evidence is not
yet completed, the impugned order dated 12/06/2023 is set aside.
11. The Respondent/Plaintiff will be at liberty to file appropriate
application for appointment of the Court Commissioner for report on supply
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of water from the well, and if such application is filed, the same shall be
decided in accordance with law.
12. Since the Petitioners/Defendants have filed as many as 4 affidavits of
witnesses, taking a particular stand, which has led to a situation requiring
the Trial Court to pass impugned order, the Petitioners or their witnesses are
precluded from taking any contrary stand during the Trial.
13. Rule made absolute in above terms. No order as to the costs.
14. All concerned to act on duly authenticated or digitally signed copy of
this order.
(M. M. SATHAYE, J.)
