Eknath Shankar Shinde & Anr. v. Rayajirao Madhavrao Jadhav & Ors.

IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.2223 OF 2011 Eknath Shankar Shinde & Anr. : Petitioners versus Rayajirao Madhavrao Jadhav & ors. : Respondents. Mr. M N Dhamal for the Petitioner. Mrs. Lalita Panchakashri for the Respondents. CORAM : R M SAVANT, J. DATE : 14th November 2011 P.C. 1 The above Petition takes exception to the order dated 2/2/2011 passed by the Civil Judge, Junior Division, Wai by which order, the Application- Exhibit-112 for appointment of a Court Commissioner came to be rejected. 2 The Respondents herein, who are the Plaintiffs, have filed Regular Civil Suit No.107/2003 for perpetual injunction. The Petitioners are the original Defendants. The subject matter of the said suit is the Sarbandh between Gat Nos.993 and 994/2 of which Plaintiff Nos.4 to 7 are the owners and Gat No.994/1 of which the Defendants are owners. It is the case of the Plaintiffs that the they have easmentary right over the said Sarbandh. The said case of the Plaintiffs has been denied by the Defendants i.e. the present Petitioners in their written statement, and the very existing of the said Sarbandh has been denied. The Defendants have filed the said Application- 2 WP-2223.11.sxw Exhibit-112 for appointment of Court Commissioner to ascertain existence of the said Sarbandh. The said Application has been rejected by the trial Court on the ground that the Defendants would not be entitled to take two contradictory stands inasmuch as on the one hand the Defendants having denied the existence of Sarbandh cannot therefore seek appointment of Court Commissioner for ascertaining its existence. It is in the context of the said pleadings that the trial Court has rejected the Application-Exhibit-112. The reasons given by the trial Court in my view cannot be faulted with. In that view of the matter, no case for interdiction is made out. The above Writ Petition is accordingly dismissed.

[R.M.SAVANT, J]