High Court

Legal Reasoning

(1) WP-2451-2025.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABADWRIT PETITION NO.2451 OF 20251.Hanmant s/o Govind MuleAge: 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)Versus1.Tushar Prasanna Vaidya,Age: 26 years, Occ. Education,2.Manisha Prasanna Vaidya,Age: 46 years, Occ. Household,Both R/o. Behind Hotel VishwamitraRamnagar, 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 theparties, matter is taken up for final hearing at admission stage.2.The petitioners impugn order dated 22.11.2023, passed belowExhibit-65, by Civil Judge Junior Division, Ambajogai in RegularCivil Suit No.173/2013, thereby appointing Court Commissioner for (2) WP-2451-2025.odtmeasurement of land Gut No.302 situated at Patoda, TalukaAmbajogai, Dist. Beed. (Hereinafter, parties are referred to bytheir original status for the sake of convenience and brevity).3.The respondents/plaintiffs instituted Regular Civil SuitNo.173/2013 before Civil Judge Junior Division at Ambajogaiseeking relief of perpetual injunction. According to plaintiffs, oneBapusaheb Balasaheb Deshmukh was owner of land Gut Nos.299and 302 situated at village Patoda. He sold land Gut No.302 underregistered sale deed in favour of plaintiffs. Eventually, mutationentry has been certified. The plaintiffs were put into possession.The defendants, who are adjacent land holders from Southern sidestarted obstruction to peaceful possession of plaintiffs andattempting to remove boundary marks. The plaintiffs requestedthem to jointly measure land and resolve dispute. However,defendants refused proposal. According to plaintiffs, on 19.05.2013defendants using muscle power brought Tractor with intention toplough down bandh between lands of plaintiffs and defendants.The plaintiffs approached Police Station Ambajogai and lastly filedpresent suit. The defendants constantly threatening plaintiffs.Hence, they sought relief of perpetual injunction againstdefendants 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 (3) WP-2451-2025.odtfiled. The plaintiffs are trying to grab 11R land of defendantsbased on incorrect mutation entry and illegal sale deeds.5.The plaintiffs filed application below Exhibit-34 seekingappointment of Court Commissioner to measure land and fixboundaries. The said application was rejected vide order dated04.04.2022 observing that application is an attempt to collectevidence. Similarly, there is nothing to indicate nature ofencroachment or its particulars. The plaintiffs again filed secondapplication below Exhibit-65 for similar relief contending thatdefendants have encroached upon their land. Trial Court observedthat there is dispute in respect of encroachment on suit property aswell as boundary marks and, therefore, appointment of CourtCommissioner is necessary. Consequently, ordered TILRAmbajogai to act as Court Commissioner and measure land ofplaintiffs i.e. Gut No.302 situated at Patoda and ascertainencroachment, if any, on the area owned and possessed byplaintiffs and fix boundaries and submit report within two monthsfrom the date of deposit of amount.6.Mr. Khande, learned Advocate appearing forpetitioners/defendants submits that Trial court had provisionallyrejected prayer for appointment of Court Commissioner made byplaintiffs vide application below Exhibit-34 observing thatparticulars of encroachment are not provided and Court (4) WP-2451-2025.odtCommissioner cannot be appointed to collect the evidence,particularly when suit is simplicitor for injunction. However,ignoring previous order, subsequent application filed belowExhibit-65 by plaintiffs for similar relief has been entertained andCourt Commissioner has been appointed. According to Mr.Khande, there is no dispute as to the boundaries as observed byTrial Court. The appointment of Court Commissioner isunnecessary. The Trial Court exceeded jurisdiction under OrderXXVI Rule 9 of Code of Civil Procedure.7.Per contra, Mr. Vaidya, learned Advocate appearing forrespondent nos.1 and 2 submits that defendants have encroachedupon plaintiffs’ land by disturbing band. Therefore, to resolvecontroversy between parties, appointment of Court Commissionerwas necessary. In support of his contentions he relies uponfollowing judgment:1.Pandit Vithal Landage Vs. Vishnu Govind Pawarand Anr (Writ Petition No.5158/2024 dated30.04.2025).2.Govardhan s/o. Narayan Gaikwad Vs. M/s. Sai BabaEstate (Writ Petition No.7594/2020 dated 21.01.2022).3.Sudhakar S/o. Baburao Kulkarni Vs. Gorabai w/oThansing Marag (Second Appeal No.482/2018 dated22.04.2019). (5) WP-2451-2025.odt8.Having considered submissions advanced by learnedAdvocates appearing for respective parties, it can be observed thatplaintiffs have instituted suit simplicitor for perpetual injunctionasserting that defendants are attempting to encroach upon theirland and threatened to do so on 19.05.2013, when they come withTractor. The suit is pending since 2013. It is evident thatpreviously petitioners had filed application below Exhibit-34 forsimilar relief and same has been rejected. However, subsequentapplication date 20.06.2023 filed below Exhibit-65 has beenentertained by Trial Court and impugned order of appointment ofCourt Commissioner has been passed.9.The learned Trial Court observed in paragraph no.8 ofimpugned order that petitioners are owners of land Gut No.302admeasuring 1H 73R and from the pleadings of parties, it can beascertained that there is dispute in respect of encroachment on suitproperty and boundary marks and its demarcation and for thepurpose 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 thepleadings in plaint. The plaintiffs have simply asserted thatdefendants are trying to encroach upon their land and made suchan attempt on 19.05.2013, which is date of cause of action. There (6) WP-2451-2025.odtare no specific averments as to actual encroachment made bydefendants or disturbance of boundaries. The plaintiffs haverestricted relief for grant of decree of perpetual injunction againstdefendants. No prayer is incorporated for removal ofencroachment. No particulars of encroachment finds place inpleadings of plaintiffs. It can be observed that without specificpleadings in plaint, averments as to encroachment and disturbanceof boundaries, raised in application for appointment of CourtCommissioner cannot be considered. Pertinently, specifications ofencroachment are absent even in application.11.It is trite that, in suit simplicitor for perpetual injunction, itis for plaintiffs to establish their possession over suit property. Insuch cases, there is no necessity to appoint Court Commissioner.The appointment of Court Commissioner is advisable only whenthere are clear stipulations in pleadings as to the encroachment atthe hands of defendants and claim is raised for recovery ofpossession of encroached portion. In such cases, to supportcontentions, report of Cadastral Surveyor or expert from LandRecords is necessary. In present case, plaintiffs have notspecifically averred about encroachment made by defendants inplaint nor given specifications thereof. In that view of matter,order impugned cannot be sustained. (7) WP-2451-2025.odt12.However, it is made clear that, in case plaintiffs amendplaint seeking relief of possession or removal of encroachment,specifying area thereof, he would be at liberty to make freshapplication for appointment of Court Commissioner and in thatcase, Trial Court would be at liberty to consider such prayerwithout impeded by observations made hereinabove. In result,following order is passed:ORDERa.Writ Petition is allowed in terms of prayer Clause (C).b.Rule is made absolute in above terms. (S. G. CHAPALGAONKAR)JUDGEDevendra/June-2025