SHAIKH ISAK Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) Rule. Rule made returnable forthwith and heard finally by consent.

(2.) The petitioner takes exception to the order dated 6-3-2010 passed by the Civil Judge, J.D., Parli Vaijnath. By that order, the application filed by the respondent/original plaintiff to measure the land bearing Gat No. 83 including the disputed area of 37 R, by appointing a Cadestral Surveyor or T.I.L.R. as a Court Commissioner, came to be allowed.

(3.) The suit being R.C.S. No. 180 of 2007 is filed by the respondent No. 2/original plaintiff against the petitioner/original defendant for recovery of an area of 37 R from the land Gat No. 83. The learned Counsel for the petitioner/original defendant submitted that the trial of the suit is virtually complete and written arguments are filed and the matter is reserved for judgment by the learned Judge and it is thereafter at this belated stage, the application for appointment of Court Commissioner to measure the disputed land, has been filed by the respondent No. 2. Alluding to para 3 of the plaint, learned Counsel for the petitioner submitted that the respondent No. 2 has himself described the suit land with measurements in the plaint and has also examined one Cadestral Surveyor working under T.I.L.R. in evidence. The learned Counsel has placed reliance upon case of Sanjay s/o Namdeo Khandare vs. Sahebrao s/o Kachru Khandare, 2001 2 MhLJ 959, wherein a learned Single Judge of this Court, has held that the appointment of Court Commissioner to submit report regarding actual possession of suit field would tantamount to collecting evidence, which is not permissible.