Dispute regarding boundrycan be best adjudicated by taking asistance of experts like TILR who on mesurement can express his opinion. It cannot be said that TILR is appointed as commissioner to collect evidence.
Bombay High Court
Habibkhan vs. Waman
Citation : 2012 (2) Mh. L. J 541
CORAM : S.V. GANGAPURWALA, J.
DATE : 08/07/2011
PER COURT :
1. The present respondent/original plaintiff has
filed Suit for removal of encroachment. During the
pendency of Suit, has filed an application for
appointment of Commissioner i.e. T.I.L.R. to
measure the land of the plaintiff as well as the
defendant. The trial Court allowed the said
application. Aggrieved thereby, the present Writ
Petition is filed.
2. Mr. S.J.Salunke, the learned counsel for the
petitioner vehemently contended that the
Commissioner can not be appointed to collect the
evidence. Perusal of the application shows that the
Commissioner is appointed only for the purpose of 2 WP 4947.2011
collecting evidence. The plaintiff has to stand or
fall on his own feet and can not take the aid of the
Court in collecting the evidence. The learned
counsel further states that earlier the present
petitioners had filed Suit for injunction which
came to be decreed, in which the present
respondents stated that there is no bandh between
the land of the plaintiff and the defendant and
now in the present case are coming forth with the
story that the bandh is demolished by the
defendant.
3. To substantiate the contention that the
Commissioner can not be appointed to collect the
evidence, the learned counsel relies on the
Judgment of the learned Single Judge of this Court
in the case of Sanjay S/o Namdeo Khandare V/s
Sahebrao S/o Kachru Khandare and others
reported in 2001 (1) Bom.C.R. 800.
4. The proposition that the Commissioner can
not be appointed to collect the evidence, need not
be dilated. But, in each and every case, it can not
be said that the Commissioner appointed by the
Court invoking its power U/s 75 read with Order
XXVI Rule 9 of the Code of Civil Procedure is for
collecting evidence. In many cases, they are meant
for the assistance of the Court in arriving at the 3 WP 4947.2011
just conclusion.
5. The disputes regarding the boundaries can
be best adjudicated by taking the assistance of the
experts such as the T.I.L.R., who on measurement
can express his opinion. The Apex Court in a case
of Haryana Wakf Board V/s Shanti Sarup and
others reported in 2008 ( 8 ) SCC 671 and the
learned Single Judge of this Court in a case of
Kolhapuri Bandu Lakade V/s Yellapa Chinappa
Lakade [ since deceased ] through L.Rs. Puja
about Pujari Y.Lakade and others reported in
2011 ( 3 ) Mh.L.J. 348 have held that in case
regarding boundaries and area, an expert person
can be appointed as a Commissioner for
measurement of the properties. In the present
case, the plaintiff has prayed for appointment of
Commissioner to measure the property of the
plaintiff as well as the defendant, which has been
allowed.
6. The Judgment relied by the learned counsel
for the petitioner is of no avail in view of the fact
that in the said case, the Commissioner was
appointed to inspect the spot and submit the
report about the actual possession. In light of
those facts, it was observed by this Court that the
Commissioner could not be appointed to gather 4 WP 4947.2011
evidence as to the possession.
7. In view of the above conspectus of the
matter, no error is committed by the Court below
while passing the impugned order. The Writ
Petition as such is dismissed, however with no
order as to costs.
[ S.V. GANGAPURWALA,J. ]
KNP/WP 4947.2011
Print Page
Bombay High Court
Habibkhan vs. Waman
Citation : 2012 (2) Mh. L. J 541
CORAM : S.V. GANGAPURWALA, J.
DATE : 08/07/2011
PER COURT :
1. The present respondent/original plaintiff has
filed Suit for removal of encroachment. During the
pendency of Suit, has filed an application for
appointment of Commissioner i.e. T.I.L.R. to
measure the land of the plaintiff as well as the
defendant. The trial Court allowed the said
application. Aggrieved thereby, the present Writ
Petition is filed.
2. Mr. S.J.Salunke, the learned counsel for the
petitioner vehemently contended that the
Commissioner can not be appointed to collect the
evidence. Perusal of the application shows that the
Commissioner is appointed only for the purpose of 2 WP 4947.2011
collecting evidence. The plaintiff has to stand or
fall on his own feet and can not take the aid of the
Court in collecting the evidence. The learned
counsel further states that earlier the present
petitioners had filed Suit for injunction which
came to be decreed, in which the present
respondents stated that there is no bandh between
the land of the plaintiff and the defendant and
now in the present case are coming forth with the
story that the bandh is demolished by the
defendant.
3. To substantiate the contention that the
Commissioner can not be appointed to collect the
evidence, the learned counsel relies on the
Judgment of the learned Single Judge of this Court
in the case of Sanjay S/o Namdeo Khandare V/s
Sahebrao S/o Kachru Khandare and others
reported in 2001 (1) Bom.C.R. 800.
4. The proposition that the Commissioner can
not be appointed to collect the evidence, need not
be dilated. But, in each and every case, it can not
be said that the Commissioner appointed by the
Court invoking its power U/s 75 read with Order
XXVI Rule 9 of the Code of Civil Procedure is for
collecting evidence. In many cases, they are meant
for the assistance of the Court in arriving at the 3 WP 4947.2011
just conclusion.
5. The disputes regarding the boundaries can
be best adjudicated by taking the assistance of the
experts such as the T.I.L.R., who on measurement
can express his opinion. The Apex Court in a case
of Haryana Wakf Board V/s Shanti Sarup and
others reported in 2008 ( 8 ) SCC 671 and the
learned Single Judge of this Court in a case of
Kolhapuri Bandu Lakade V/s Yellapa Chinappa
Lakade [ since deceased ] through L.Rs. Puja
about Pujari Y.Lakade and others reported in
2011 ( 3 ) Mh.L.J. 348 have held that in case
regarding boundaries and area, an expert person
can be appointed as a Commissioner for
measurement of the properties. In the present
case, the plaintiff has prayed for appointment of
Commissioner to measure the property of the
plaintiff as well as the defendant, which has been
allowed.
6. The Judgment relied by the learned counsel
for the petitioner is of no avail in view of the fact
that in the said case, the Commissioner was
appointed to inspect the spot and submit the
report about the actual possession. In light of
those facts, it was observed by this Court that the
Commissioner could not be appointed to gather 4 WP 4947.2011
evidence as to the possession.
7. In view of the above conspectus of the
matter, no error is committed by the Court below
while passing the impugned order. The Writ
Petition as such is dismissed, however with no
order as to costs.
[ S.V. GANGAPURWALA,J. ]
KNP/WP 4947.2011
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