High Court

Legal Reasoning

1 154-16--WP.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADWRIT PETITION NO.154 OF 20161.Balasaheb s/o Sadashiv More,Age 63 years, Occ. Agri.2.Gautam s/o Balasaheb More,Age 33 years, Occ. Agri.3.Dnyaneshwar s/o Sudhakar More,Age 28 years, Occ. Agri.4.Dattatraya s/o Balasaheb More,Age 35 years, Occ. Agri.5.Sudhakar s/o Sadashiv More,Age 48 years, Occ. Agri.,All R/o Hingani (Bk.),Tal. Kille Dharur, Dist. Beed....Petitioners (Orig. Defendants)VersusShivraj s/o Subhashrao Solanke,Age 24 years, Occ. Agri.,R/o Hingani (Bk.),Tal.Kille Dharur, Dist. Beed....Respondent (Orig. Plaintiff)…..Mr. S.B. Solanke, Advocate for PetitionersMr. S.B. Choudhari, Advocate for Respondent….. CORAM : MANJUSHA DESHPANDE, J. RESERVED ON : 10th JANUARY, 2025PRONOUNCED ON : 21st JANUARY, 2025ORDER : 1.Order dated 10/02/2014, passed by the Civil Judge,Junior Division, Dharur, below Exhibit-31 in R.C.S. No.04/2012, isassailed in the present petition. Petitioners are original defendantsin R.C.S. No.04/2012 filed by plaintiff i.e. respondent herein forperpetual injunction.SVH 2 154-16--WP.odt2.It is the case of plaintiff / respondent herein that he hadpurchased agricultural land at Hingani Khurd, Taluka Kille Dharur,District Beed, bearing Gut No.194 to the extent of 1 H 21 R, fromSharad Bharatrao Solanke for consideration of Rs.2,50,000/-, on12/06/2009 by way of sale deed bearing No.761/2009. From thedate of sale deed he is in possession of the said land. Defendants /petitioners have started obstructing his possession, therefore, hewas constrained to file the suit for perpetual injunction. Petitioners /defendants, in pursuance to the summons issued to them appearedin the suit and filed their written statement denying the contents ofthe plaint. They have denied that they are causing any disturbancein the possession of plaintiff and prayed for dismissal of the suit.After filing of the suit it proceeded and application below Exhibit-30and 31 for appointment of Court Commissioner came to be filed byrespondent / plaintiff. Petitioners / defendants filed their ‘say’thereby opposing the application stating that said application hasbeen filed by respondent / plaintiff only with an intention to collectthe evidence. Hence, it was prayed that application be rejected.3.The Civil Judge, Junior Division, Dharur, after hearing theapplication has been pleased to pass the order dated 10/02/2014,thereby allowing the application and appointing Taluka Inspector ofLand Records, Dharur, as Court Commissioner, directing him tomeasure entire Gut No.194 along with it’s Pot Hissa and submit selfSVH 3 154-16--WP.odtexplanatory report in respect thereof. Being aggrieved anddissatisfied with the said order, petitioners/defendants have filedpresent writ petition.4.Learned advocate Mr. S. B. Solanke, appearing forpetitioners submits that the application filed by respondent /plaintiff was only with an intention to collect the evidence, which isnot permissible under law. Scope of Order 26 Rule 9 of the C.P.C. islimited. It is settled position of law that application for appointmentof Court Commissioner cannot be filed with an intention to collectthe evidence. Parties have to prove their case on the basis ofevidence available with them. Hence, according to him theapplication was not tenable. While opposing the application,petitioners / defendants have stated before the Civil Judge JuniorDivision that, the suit itself has been filed for perpetual injunctionand there is no whisper about any encroachment made on hisagricultural land. Therefore, there is no necessity for appointment ofT.I.L.R. as a Court Commissioner for conducting measurement of theland.5.It was further submitted before the Trial Court that sincethe relief sought by plaintiff was for perpetual injunction, it is for theplaintiff to prove obstruction caused by defendants by producingevidence on record and he cannot collect evidence by seekingappointment of Court Commissioner. It is for the plaintiff to proveSVH 4 154-16--WP.odtthat defendants have caused obstruction to his possession. Only incase the plaintiff has proved prima facie that defendants havecaused obstruction to his possession, the prayer made by plaintifffor appointment of Court Commissioner would be tenable. In thesuit for injunction evidence cannot be collected by appointment ofCourt Commissioner.6.After hearing the respective parties and going throughthe documents annexed with the writ petition it is evident that saledeed has been executed by one Sharad Bharat Solanke forconsideration of Rs.2,50,000/-, on 12/06/2009 in favour of plaintiffand accordingly possession was handed over to plaintiff from thedate of sale deed. Even entry in 7/12 extract and the Mutation EntryNo.796 has been taken to that effect. While opposing the suit,defendants have claimed that the State Government has acquiredthe suit land for Saraswati Project. Though as per the sale deedplaintiff has been in possession of the land and Mutation entry aswell as 7/12 extracts also show his possession, however, possessionof the plaintiff has been disputed by the ‘say’ of defendants on twogrounds; that land has been acquired by the State Government forSaraswati Project and; an incorrect map has been placed on record.Therefore, in order to ascertain correct existing position of the suitland, plaintiff had requested to appoint Court Commissioner.7.Though defendants have opposed the prayer made inSVH 5 154-16--WP.odtthe application at Exhibit-31, the Civil Judge, Junior Division, Dharur,after taking into consideration the nature of dispute has passed theimpugned order thereby allowing application at Exhibit-31. It hasrecorded finding that, from the pleadings and the say of defendantsit is clear that original owner Bharat Solanke has executed sale deedin favour of plaintiff, however, the area mentioned in the sale deedwas not existing in the said Gut number on the date of sale deed. Itis further observed that according to defendants some of the land inthat Gut number has already been acquired by the StateGovernment for Saraswati Project long back and therefore, the saidpart of the land which has been acquired is in possession of theState Government.8.It is further observed that, though it is submitted thatthe land has been acquired by State Government from Gut No.194,however, there is no entry in the revenue record about theacquisition of said land. Similarly, there is no entry in 7/12 extractabout the acquisition, therefore, it is necessary to ascertain as towhat extent the land has been acquired from Gut No.194.Considering the rival conflicting stand taken by the parties to thedispute, Trial Court has observed that though as per the documentson record sale deed has been executed in favour of plaintiff and alsosome part of Gut No.194 is acquired by the Government. Unless it isascertained as to which part of the gut number and to what extentSVH 6 154-16--WP.odtland is acquired by the State Government, dispute between theparties cannot be resolved. In order to ascertain exact position ofthe suit land, T.I.L.R. would be the only competent authority.9.Though on the basis of sale deed possession of plaintiffis shown in the 7/12 extract and mutation entry to that effect istaken, however, considering the ‘say’ filed by the defendants it isnecessary to ascertain the exact position, as it is claimed that theGovernment is in possession of the part of suit land in view ofacquisition. In view of the reasoning given by the Trial Court, I donot find that there is any error committed while passing theimpugned order thereby directing T.I.L.R., Dharur, to act as CourtCommissioner and conduct the measurement of land Gut No.194 inrespect of the land as per sale deed along with the sub-divisionsand also ascertain whether some part of the land has been acquiredby the State Government. The T.I.L.R. has also been directed tosubmit report along with the map.10.The impugned order has been challenged by petitioneron 23/11/2015 by filing present writ petition. Admittedly, there is nostay granted by this Court to the impugned order. In view of thesame, when present status of the suit was inquired it is informedthat the issues have been framed on 15/11/2022 and even the oralevidence of plaintiff is completed. It is further informed thatpursuant to the order appointing Court Commissioner, the trialSVH 7 154-16--WP.odtCourt has not received report of the Court Commissioner. Reminderwas already sent to the T.I.L.R. on 07/09/2021. In response to thesame, office of T.I.L.R. has responded and sent communication tothe Court on 30/11/2021, informing that plaintiff has remainedabsent during the measurement, therefore, measurement of the suitland could not be done. It is further informed that if plaintiff depositsmeasurement fee in the office of T.I.L.R., measurement will beconducted afresh and report will be submitted.11.While assailing the impugned order, petitioners reliedupon the order dated 17/01/2014, passed by this Court in WritPetition No.8877/2013 (Chandrakant Kashinath Dike & Others Vs.Smt. Satyabhama Vishwanath Dike & Another), wherein this Courthad observed that it is premature to file application for appointmentof Court Commissioner before the witnesses have stepped into thewitness box. At the stage of evidence, from the evidence on recordi.e. documentary evidence if the Court finds that appointment ofCourt Commissioner is necessary, then at that stage parties canapply for appointment of T.I.L.R. as Court Commissioner. Hence theorder of appointment of T.I.L.R. as Court Commissioner was found tobe premature and the same has been quashed and set aside,granting liberty to the parties to file application for appointment ofCourt Commissioner at later stage.12.However, the facts of the present case being different,SVH 8 154-16--WP.odtin my opinion, the said order cannot be made applicable to the factsof the present case. In present case, though on papers possession isfound to be that of plaintiff, however the same is disputed and it isclaimed that some of the portion is in possession with theGovernment by way fo acquisition. However, the exact part of theland on which it is claimed that Government is in possession, is notmentioned and there are no revenue entries of acquisition,therefore, T.I.L.R. would be the appropriate authority to ascertainthe same.13.In the facts of the present case, I do not find that anyerror is committed by Civil Judge, Junior Division, Dharur, whilepassing the impugned order. Hence, the writ petition is dismissed. (MANJUSHA DESHPANDE, J.)SVH