Dismissed

Shivraj Somnath Tavle and Ors. v. Suryakant Pandharinath Tavale and Ors.

Bombay HC17 Jan 2012WP/473/2012

Case brief

AI extract

What is this about?

This writ petition challenges the trial court's refusal to appoint a court commissioner to inspect disputed suit property in a simplicitor injunction case. The High Court held that the appointment of a commissioner is discretionary and not mandatory when the plaintiff bears the burden of proof.

What did the court decide?

The Writ Petition was dismissed with no costs awarded.

Shivraj Somnath Tavle and Ors. Vs Suryakant Pandharinath… — Property and Title | Bombay HC (2012)

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1 W.P. 473.2012

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FARAD CONTINUATION SHEET No.

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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WRIT PETITION NO. 473 OF 2012

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Office Notes,Office Court's or Judge's orders Memoranda of Coram,appearances, ................................ Court's orders or CORAM : S.V.GANGAPURWALA, J. directions and Registrar's orders DATE : 17/01/2012.

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Mr. V.R.Dhorde, Advocate for the Petitioners.

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PER COURT :

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Heard Mr. Dhorde, the learned counsel for the petitioners.

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The present petitioners are the original defendant nos. 3 to 5. The plaintiff has filed Suit for simplicitor injunction restraining the defendant nos. 1 to 5 from obstructing in the peaceful possession of the plaintiff and further from taking the water from the common pipe line. The defendant nos. 3 to 5 have filed the Written Statement and disputed the case putforth by the plaintiff. According to them, the plaintiff has made wrong description of the property. The defendant nos. 3 to 5 filed an application for appointment of Court commissioner to

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2 W.P. 473.2012

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inspect the suit property and prepare the panchanama. The said application is rejected. Aggrieved thereby the present Writ Petition is filed.

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Mr. Dhorde, the learned counsel for the petitioners strenuously contends that the petitioners in their application have in detail put-forth before the Court the anomalies and the wrong description made by the plaintiff. The defendants have come with correct description and as per the description made by the plaintiff, the suit site is not in existence. All these facts can be brought on record in a proper manner by the Court commissioner, who is an independent person. The report of the Court commissioner would assist the Court in arriving at the just conclusion and the Court under Order XXVI Rule 9 of the Code of Civil Procedure [ For short, ‘ the Code ] has ample power for the same. The learned counsel relies on the Judgment of the learned Single Judge of this Court in the case of Yashwant Bhaduji Ghuse V/s Vithobaji Laxman Ladekar reported in 2010 ( 3 ) Mh.L.J. - 956 and another Judgment of the learned Single Judge of this Court in the case of Girish Vasantrao Bhoyar & anr. V/s Nimbaji Warluji Bambal reported in 2009 ( 4 ) ALL MR – 761 to contend that the Court can appoint commissioner in case of boundaries disputes and the disputes about the identity of the land. In the present case, the very description of the suit property is in dispute and

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3 W.P. 473.2012

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so the commissioner should have been appointed.

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The powers of the Court U/s 75 read with Order XXVI Rule 9 of the Code for appointment of Court commissioner are discretionary. It is if the Court finds that the appointment of the Court commissioner is necessary, for effective adjudication of the dispute, then the Court can appoint the Court commissioner. The Court would more readily invoke the said provision if the dispute is regarding the boundaries and the assistance of an expert is required to resolve the dispute by measurement or otherwise.

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The present case is a Suit for simplicitor injunction. It is for the plaintiff to prove his own case. The description given by the plaintiff has to be proved by the plaintiff and if the case put-forth by the plaintiff is proved, then he is entitled for the relief. The petitioners are the original defendants. The burden is upon the plaintiff to prove his case. The defendants want the Court commissioner to be appointed simply to inspect the property and draw the panchanama about the existence of the suit site. The Court in its order has observed that the Suit is for simplicitor injunction and on the basis of the documents and the evidence, the parties can prove their possession over the suit property.

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4 W.P. 473.2012

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The discretion has been exercised by the Court in its plausible manner. In view of that, no case for interference is made in the writ jurisdiction of this Court under Article 227 of the Constitution of India.

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The Writ Petition as such is dismissed. No costs.

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[ S.V. GANGAPURWALA,J. ]

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KNP/W.P. 473.2012

Shivraj Somnath Tavle and Ors. v. Suryakant Pandharinath Tavale and Ors.

Case brief

What is this about?

What did the court decide?

Shivraj Somnath Tavle and Ors. v. Suryakant Pandharinath Tavale and Ors.

Case brief

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