Dismissed¶25

Bhagatsing Mohansing Kachvay Thakur and Others v. Shree Makardhwaj Shikshan Sanstha through Secretary

Bombay HC29 Jan 2026WP/969/2026

Case brief

AI extract

What is this about?

Court Commissioner; Order 26 Rule 9 CPC; appointment at evidence-recording stage; demarcation and fixation of boundaries; encroachment suit; Deputy Superintendent of Land Records; Gut No. 451; Beed; Article 227 writ; earlier application rejected 15.03.2023 confirmed in W.P. 14174/2023 with liberty to file afresh; Shantaram Dattatray Kekan LAWS (BOM) 2022 12 5 distinguished; Shobha Sanjay Gadekar LAWS(BOM) 2024 5 124 distinguished; Pandit Vithal Landage W.P. 5158/2024 referred by respondent; T.I.L.R.; Chapalgaonkar J.; Writ Petition No. 969 of 2026 rejected.

What did the court decide?

None to the Petitioners; the writ petition was rejected and the impugned order allowing appointment of the Court Commissioner was left undisturbed. ¶25

Bhagatsing Mohansing Kachvay Thakur and Others vs… — Writ and Judicial Review | Bombay HC (2026)

What the court decided

AI extract

Outcome

None to the Petitioners; the writ petition was rejected and the impugned order allowing appointment of the Court Commissioner was left undisturbed.

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Issue for consideration

Whether the Trial Court was justified in allowing the Respondent/plaintiff's application below Exhibit 46 for appointment of a Court Commissioner (measurement/demarcation of Gut No. 451) at the stage of recording of evidence, such that interference under Article 227 is warranted. +1 more

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Court's answer

Where a suit is for removal of encroachment and the dispute concerns demarcation of lands or boundaries, fixation of boundaries through the Competent Authority of Land Records is necessary.

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Ratio / Principle

The Trial Court would not be in a position to decide the lis in the absence of an admitted or authentic measurement map from the Competent Authority.

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Key takeaways

In the factual backdrop (encroachment alleged in front of plaintiff's property with construction of sheds, requiring ascertainment whether the construction lies within plaintiff's or defendants' land), the Trial Court was justified in exercising jurisdiction under Order 26 Rule 9 of the Civil Procedure Code.ratio¶20
The Shantaram Dattatray Kekan observations relied upon by the Petitioners are distinguishable: in that case the application for appointment of Court Commissioner was made prior to the decision on the temporary injunction application and was sought not only for boundary fixation but also to find out construction raised in the lands; hence it was found premature there.ratio¶24

Detailed headnote1 paragraphs

Bombay High Court (Aurangabad Bench), S. G. Chapalgaonkar, J. — Writ Petition (Article 227) against order dated 09.12.2025 of the 5th Joint Civil Judge, Senior Division, Beed, allowing the plaintiff's Exhibit-46 application for appointment of a Court Commissioner in Regular Civil Suit No. 93 of 2020 (suit for removal of encroachment, possession and perpetual injunction) — REJECTED. Held: (i) in a dispute over demarcation of lands/boundaries, fixation of boundaries through the Competent Authority of Land Records is necessary, and the Trial Court cannot decide the lis without an admitted or authentic measurement map; (ii) the Trial Court acted within Order 26 Rule 9 CPC in directing measurement of the entire Gut No. 451 through the Deputy Superintendent of Land Records to fix boundaries and depict encroachment; (iii) the earlier decisions in Shantaram Dattatray Kekan (LAWS (BOM) 2022 12 5) and Shobha Sanjay Gadekar (LAWS(BOM) 2024 5 124), relied upon by the petitioners, were distinguished — the former concerned an application made before decision on temporary injunction (premature), and the latter required preliminary evidence with a map, whereas here issues were already framed and the matter was at the evidence-recording stage, so the Commissioner's report would benefit both parties. An earlier rejection of a Commissioner application (15.03.2023), confirmed in W.P. No. 14174 of 2023 with liberty to apply afresh, did not bar the fresh application.

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2026:BHC-AUG:8283

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD

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923 WRIT PETITION NO. 969 OF 2026

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BHAGATSING MOHANSING KACHVAY THAKUR AND OTHERS VERSUS SHREE MAKARDHWAJ SHIKSHAN SANSTHA THROUGH SECRETARY

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Mr. H. V. Tungar, Advocate for the Petitioners Mr. D. J. Choudhari, Advocate for Respondents

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CORAM : S. G. CHAPALGAONKAR, J. DATED : 24^th FEBRUARY, 2026

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P. C. :-

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The present Writ Petition takes exception to order dated 09.12.2025 passed by 5^th Joint Civil Judge, Senior Division, Beed below Exhibit 46 in Regular Civil Suit No. 93 of 2020, whereby application filed by Respondent/plaintiff seeking appointment of Court Commissioner has been allowed.

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The Respondent/plaintiff instituted suit seeking removal of encroachment, possession and perpetual injunction. The suit is at the stage of recording of evidence after framing of issues. Previously, plaintiff had filed an application seeking appointment of Court Commissioner, which was rejected by order dated 15.03.2023 and said order is also confirmed by this Court in Writ Petition No. 14174 of 2023 with liberty in favour of plaintiff to file application for appointment of Court Commissioner at appropriate stage. It is

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923 WP 969.2026.odt

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further clarified that, if such an application is filed, Trial Court shall decide the same afresh in accordance with law, without being impeded by previous order.

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In light of aforesaid factual backdrop, Respondent/plaintiff filed application below Exhibit 46 seeking appointment of Court Commissioner. The learned Judge of Trial Court allowed said application and directed to measure entire Gut No. 451 through Deputy Superintendent of Land Records for fixation of boundaries and demarcation of lands in possession of respective parties, depicting encroachment, if any.

¶14

Mr. Tungar, learned Advocate appearing for Petitioners raised twofold objection to impugned order. According to him, unless plaintiff records evidence, there is no occasion to appoint Court Commissioner, particularly when similar attempt was dislodged earlier by Court. Secondly, appointment of Court Commissioner would amount to permission to collect evidence. In support of his contention, Mr. Tungar heavily relies upon observations of this Court in case of Shobha Sanjay Gadekar Versus Godavari w/o Pralhad Pimpale reported in LAWS(BOM) 2024 5 124 and observations of this Court in case of Shantaram Dattatray Kekan Versus Bhausaheb Karbhari Kekan reported in LAWS (BOM) 2022 12 5 .

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Per contra, Mr. Choudhari, learned Advocate appearing for

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Respondent, would submit that, looking to the nature of suit, appointment of Court Commissioner and fixation of boundaries through the Competent Authority like T.I.L.R. would be essential. He relied upon observations of this Court in case of Pandit Vithal Landage Versus Vishnu Govind Pawar and Anr in Writ Petition No. 5158 of 2024, decided on 03.04.2025 .

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Having considered submissions advanced and on perusal of reasoning adopted by Trial Court, it is discernible that suit is instituted for removal of encroachment. The dispute is about demarcation of lands or boundaries. In such case, fixation of boundaries through Competent Authority of land Records is necessary. The Trial Court would not be in position to decide lis in absence of admitted or authentic measurement map from Competent Authority. In present case, plaintiff is claiming that defendants have caused encroachment in front of his property and raised construction of sheds. It is therefore, necessary to ascertain whether such construction is within boundaries plaintiffs land property or construction is within defendants land.

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In this factual backdrop, this Court finds that Trial Court is justified in exercising jurisdiction under Order 26 Rule 9 of Civil Procedure Code.

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Although Mr. Tungar relied upon observations of this Court in

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case of Shantaram Dattatray Kekan (supra), in that case application for appointment of Court Commissioner was made prior to decision on application for temporary injunction. The appointment of Court Commissioner was sought not only for fixation of boundaries but also to find out construction raised in lands. Hence, this Court disappeared order being premature stage. Similarly, in case of Shobha Sanjay Gadekar (supra), this Court was of the view that plaintiff has to produce preliminary evidence along with map and show encroachment and if Court is unable to reach conclusion on the basis of evidence produced the appointment of Court Commissioner can be raised. In present case, issues are already framed. The matter is at the stage of recording evidence. If Commissioner’s report comes on record it would be in the interest of both parties to refer said report and lead necessary evidence, either to support or objects report.

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In result, this Court finds no reason to interfere in impugned order in exercise of writ jurisdiction under Article 227 of Constitution of India, Writ Petition stands rejected .

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(S. G. CHAPALGAONKAR, J.)

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ssp

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Bhagatsing Mohansing Kachvay Thakur and Others v. Shree Makardhwaj Shikshan Sanstha through Secretary

Case brief

What is this about?

What did the court decide?

Bhagatsing Mohansing Kachvay Thakur and Others v. Shree Makardhwaj Shikshan Sanstha through Secretary

Case brief

What is this about?

What did the court decide?

Why is it important?

What the court decided

Issues for consideration

Cases cited

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Procedural history

Parties & counsel

Coram

Case details

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