Writ petition challenging the rejection of an application for appointment of a court commissioner in an ongoing civil suit regarding property boundaries. The High Court held it was not a fit case for Article 227 intervention.
Rule is discharged. Writ petition is rejected.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD
WRIT PETITION NO.699 OF 2017.
Dilip Madhavrao Shinde, Age : 63 years, Occup. Agri., R/o. Mugaon, Tq. Nilanga, Dist. Latur ...PETITIONER
Versus
Shivaji Ramkishan Shinde, Age : 46 years, Occup. Agri., R/o Mugaon Tq. Nilanga, Dist. Latur. ...RESPONDENT
Mr. T. M. Venjane, Advocate for petitioner Mr. K. V. Patil, Advocate for Respondent (sole)
CORAM : A.M. DHAVALE, J. DATED : 11TH JULY, 2017.
ORAL ORDER :
petitioner. The petitioner is original defendant and respondent
is the plaintiff. The Plaintiff has filed Regular Civil Suit No.
394/2015 which is pending before Civil Judge, Senior
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Division, Nilanga. The plaintiff claims that, he is owner and in possession of Grampanchayat House No.752/1, and the defendant was trying to disturb his possession. There are some averments about illegal encroachment by the defendant, but the suit is filed on the basis of ownership and possession for perpetual injunction to restrain the defendants from making encroachment or cattle trespass on land in the possession of the plaintiff. The defendant filed written statement and he also claimed that, he is owner and in possession of the suit property. The boundaries of the suit property shown by the plaintiff and defendant are different. Hence, the defendant filed application Exh.39, for appointment of court commissioner. He claimed for joint measurement and fixation of the boundaries. The plaintiff resisted the said application, and the learned Civil Judge, Senior Division, by order dated 05.12.2016, rejected the application. The Court held that, already temporary injunction was granted in favour of the plaintiff holding him in possession of the property. There was no documentary
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evidence on record which shows that, the Grampanchayat
record was tampered as claimed by the defendant.
petitioner, I find that, it is not a fit case to exercise powers under Article 227 of Constitution of India. The plaintiff has
come to the Court and it is for him to prove his case. The
boundaries of the suit plot can be proved by oral and documentary evidence and for that purpose appointment of
court commissioner is not necessary. The defendant is at liberty to get the boundaries fixed from the concerned authority, but appointment of court commissioner was not necessary. Rejection of this application can be made ground in appeal, in case the suit is decided against the defendant. There is no serious miscarriage of justice to invoke the powers under Section 227. Hence the petition is rejected. Hence, the
rule is discharged.
[ A.M. DHAVALE, J.]
vjg/
2 issues framed by the court
Whether the High Court should exercise powers under Article 227 of the Constitution of India to interfere with the order rejecting the appointment of a court commissioner.
Whether the rejection of the application for appointment of a court commissioner resulted in serious miscarriage of justice.
Dilip Madhavrao Shinde
Shivaji Ramkishan Shinde
A.M. DHAVALE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
