Bombay High Court
Hanmant Govind Mule And Another vs Tushar Prasanna Vaidya And Anr on 16 June, 2025
2025:BHC-AUG:15110
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.2451 OF 2025
1. Hanmant s/o Govind Mule
Age: 56 years, Occ. Agriculture.
2. Narayan s/o Govind Mule,
Age: 52 years, Occ. Agriculture,
Both R/o. Patoda,
Tq. Ambajogai, Dist. Beed. ..Petitioners
(Orig. Defendants)
Versus
1. Tushar Prasanna Vaidya,
Age: 26 years, Occ. Education,
2. Manisha Prasanna Vaidya,
Age: 46 years, Occ. Household,
Both R/o. Behind Hotel Vishwamitra
Ramnagar, Ausa Road, Latur,
Dist. Latur. ..Respondents
(Orig. Plaintiff No.1 & 2)
...
Mr. A. A. Khande h/f Mr. S. S. Bhise, Advocate for Petitioners.
Mr. P. B. Vaiday, Advocate for Respondent Nos.1 and 2.
...
CORAM : S. G. CHAPALGAONKAR, J.
DATED : 16th JUNE, 2025.
JUDGMENT:
-
1. Rule. Rule made returnable forthwith. With consent of the
parties, matter is taken up for final hearing at admission stage.
2. The petitioners impugn order dated 22.11.2023, passed below
Exhibit-65, by Civil Judge Junior Division, Ambajogai in Regular
Civil Suit No.173/2013, thereby appointing Court Commissioner for
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measurement of land Gut No.302 situated at Patoda, Taluka
Ambajogai, Dist. Beed. (Hereinafter, parties are referred to by
their original status for the sake of convenience and brevity).
3. The respondents/plaintiffs instituted Regular Civil Suit
No.173/2013 before Civil Judge Junior Division at Ambajogai
seeking relief of perpetual injunction. According to plaintiffs, one
Bapusaheb Balasaheb Deshmukh was owner of land Gut Nos.299
and 302 situated at village Patoda. He sold land Gut No.302 under
registered sale deed in favour of plaintiffs. Eventually, mutation
entry has been certified. The plaintiffs were put into possession.
The defendants, who are adjacent land holders from Southern side
started obstruction to peaceful possession of plaintiffs and
attempting to remove boundary marks. The plaintiffs requested
them to jointly measure land and resolve dispute. However,
defendants refused proposal. According to plaintiffs, on 19.05.2013
defendants using muscle power brought Tractor with intention to
plough down bandh between lands of plaintiffs and defendants.
The plaintiffs approached Police Station Ambajogai and lastly filed
present suit. The defendants constantly threatening plaintiffs.
Hence, they sought relief of perpetual injunction against
defendants from interfering in peaceful possession over suit land.
4. The defendants filed written statement and refuted plaintiffs'
claim contending that false, baseless and unfounded suit has been
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filed. The plaintiffs are trying to grab 11R land of defendants
based on incorrect mutation entry and illegal sale deeds.
5. The plaintiffs filed application below Exhibit-34 seeking
appointment of Court Commissioner to measure land and fix
boundaries. The said application was rejected vide order dated
04.04.2022 observing that application is an attempt to collect
evidence. Similarly, there is nothing to indicate nature of
encroachment or its particulars. The plaintiffs again filed second
application below Exhibit-65 for similar relief contending that
defendants have encroached upon their land. Trial Court observed
that there is dispute in respect of encroachment on suit property as
well as boundary marks and, therefore, appointment of Court
Commissioner is necessary. Consequently, ordered TILR
Ambajogai to act as Court Commissioner and measure land of
plaintiffs i.e. Gut No.302 situated at Patoda and ascertain
encroachment, if any, on the area owned and possessed by
plaintiffs and fix boundaries and submit report within two months
from the date of deposit of amount.
6. Mr. Khande, learned Advocate appearing for
petitioners/defendants submits that Trial court had provisionally
rejected prayer for appointment of Court Commissioner made by
plaintiffs vide application below Exhibit-34 observing that
particulars of encroachment are not provided and Court
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Commissioner cannot be appointed to collect the evidence,
particularly when suit is simplicitor for injunction. However,
ignoring previous order, subsequent application filed below
Exhibit-65 by plaintiffs for similar relief has been entertained and
Court Commissioner has been appointed. According to Mr.
Khande, there is no dispute as to the boundaries as observed by
Trial Court. The appointment of Court Commissioner is
unnecessary. The Trial Court exceeded jurisdiction under Order
XXVI Rule 9 of Code of Civil Procedure.
7. Per contra, Mr. Vaidya, learned Advocate appearing for
respondent nos.1 and 2 submits that defendants have encroached
upon plaintiffs' land by disturbing band. Therefore, to resolve
controversy between parties, appointment of Court Commissioner
was necessary. In support of his contentions he relies upon
following judgment:
1. Pandit Vithal Landage Vs. Vishnu Govind Pawar
and Anr (Writ Petition No.5158/2024 dated
30.04.2025).
2. Govardhan s/o. Narayan Gaikwad Vs. M/s. Sai Baba
Estate (Writ Petition No.7594/2020 dated 21.01.2022).
3. Sudhakar S/o. Baburao Kulkarni Vs. Gorabai w/o
Thansing Marag (Second Appeal No.482/2018 dated
22.04.2019).
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8. Having considered submissions advanced by learned
Advocates appearing for respective parties, it can be observed that
plaintiffs have instituted suit simplicitor for perpetual injunction
asserting that defendants are attempting to encroach upon their
land and threatened to do so on 19.05.2013, when they come with
Tractor. The suit is pending since 2013. It is evident that
previously petitioners had filed application below Exhibit-34 for
similar relief and same has been rejected. However, subsequent
application date 20.06.2023 filed below Exhibit-65 has been
entertained by Trial Court and impugned order of appointment of
Court Commissioner has been passed.
9. The learned Trial Court observed in paragraph no.8 of
impugned order that petitioners are owners of land Gut No.302
admeasuring 1H 73R and from the pleadings of parties, it can be
ascertained that there is dispute in respect of encroachment on suit
property and boundary marks and its demarcation and for the
purpose of proper identification and exact portion of encroachment,
Court Commissioner needs to be appointed for local inspection.
10. It appears that observation of Trial court are contrary to the
pleadings in plaint. The plaintiffs have simply asserted that
defendants are trying to encroach upon their land and made such
an attempt on 19.05.2013, which is date of cause of action. There
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are no specific averments as to actual encroachment made by
defendants or disturbance of boundaries. The plaintiffs have
restricted relief for grant of decree of perpetual injunction against
defendants. No prayer is incorporated for removal of
encroachment. No particulars of encroachment finds place in
pleadings of plaintiffs. It can be observed that without specific
pleadings in plaint, averments as to encroachment and disturbance
of boundaries, raised in application for appointment of Court
Commissioner cannot be considered. Pertinently, specifications of
encroachment are absent even in application.
11. It is trite that, in suit simplicitor for perpetual injunction, it
is for plaintiffs to establish their possession over suit property. In
such cases, there is no necessity to appoint Court Commissioner.
The appointment of Court Commissioner is advisable only when
there are clear stipulations in pleadings as to the encroachment at
the hands of defendants and claim is raised for recovery of
possession of encroached portion. In such cases, to support
contentions, report of Cadastral Surveyor or expert from Land
Records is necessary. In present case, plaintiffs have not
specifically averred about encroachment made by defendants in
plaint nor given specifications thereof. In that view of matter,
order impugned cannot be sustained.
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12. However, it is made clear that, in case plaintiffs amend
plaint seeking relief of possession or removal of encroachment,
specifying area thereof, he would be at liberty to make fresh
application for appointment of Court Commissioner and in that
case, Trial Court would be at liberty to consider such prayer
without impeded by observations made hereinabove. In result,
following order is passed:
ORDER
a. Writ Petition is allowed in terms of prayer Clause (C).
b. Rule is made absolute in above terms.
(S. G. CHAPALGAONKAR)
JUDGE
Devendra/June-2025
