Dismissed

Smt. Malti W/O Rajesh Kapse v. Harshpal S/O Ramchandra Rangari and Another

Bombay HC5 Feb 2013WP/572/2013

Case brief

AI extract

What is this about?

Petitioner challenged a trial court order refusing permission to measure Survey No.511/2. The High Court held the trial court should not have appointed a Commissioner at all, especially during pendency of a temporary injunction application, and dismissed the writ petition.

What did the court decide?

The writ petition was dismissed with no order as to costs. The earlier order refusing permission for measurement of Survey No.511/2 was implicitly upheld.

Smt. Malti W/O Rajesh Kapse Vs Harshpal S/O Ramchandra… — Property and Title | Bombay HC (2013)

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0602wp572.13.odt

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FARAD CONTINUATION SHEET No . IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR

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WRIT PETITION NO.572/2013

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Smt. Malti w/o Rajesh Kapse ...Versus... Harshpal s/o Ramchandra Rangari and another

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Office Notes, Office Memoranda of Coram, appearances, Court's orders of directions and Registrar's orders

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Court's or Judge's orders

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Shri S.K. Ankar, Counsel petitioner

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CORAM : SMT. VASANTI A. NAIK, J. DATE : 06.02.2013

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By this petition, the petitioner impugns an order passed by the trial Court on 11.12.2012 so far as it refuses to issue direction to the Commissioner to measure Survey No.511/2.

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The petitioner is the original plaintiff. A suit was filed by the plaintiff for a declaration that the defendants did not have any right or title in the suit property. The petitioner also sought a permanent injunction against the defendants. Though the suit was not one for removal of encroachment, the petitioner filed an application for appointment of the Commissioner for measurement of the land Survey no.511/2 and Survey no.511/1. It was stated in the application that since both the parties were claiming possession of the land described in the respective title deeds, it was necessary to appoint the Court Commissioner. The trial Court allowed the application and appointed the Court Commissioner for

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0602wp572.13.odt

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measurement of the land Survey no.511/1. The petitioner has challenged the order so far as it declines permission to measure the land Survey no.511/2.

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The submission made on behalf of the petitioner that the trial Court ought to have directed the Court Commissioner to measure the land Survey no.511/2 is liable to be rejected. In the first place, the trial Court ought not have appointed the Court Commissioner at all. The appointment of the Court Commissioner is necessary only in cases of encroachment or in cases where it is necessary for the Court to see the report of the Court Commissioner for elucidating the matter in dispute. The application filed by the petitioner is as vague as could be. Moreover, the trial Court had not decided the application filed by the petitioner for grant of temporary injunction. It is a settled position of law that an appointment of the Court Commissioner cannot be made during the pendency of an application for grant of temporary injunction. If that be so, the relief sought by the petitioner in this petition cannot be granted.

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In the result, the writ petition is dismissed with no order as to costs.

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JUDGE

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ssw

Smt. Malti W/O Rajesh Kapse v. Harshpal S/O Ramchandra Rangari and Another

Case brief

What is this about?

What did the court decide?

Smt. Malti W/O Rajesh Kapse v. Harshpal S/O Ramchandra Rangari and Another

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

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