HABIBKHAN INAUTTALAKHAN Vs. WAMAN GOVIND RATHOD

JUDGEMENT

(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. Mr. S. J. Salunke, the learned counsel for the petitioner vehemently contended that the Commissioner cannot be appointed to collect the evidence. Perusal of the application shows that the Commissioner is appointed only for the purpose of collecting evidence. The plaintiff has to stand or fall on his own feet and cannot 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.

(2.) To substantiate the contention that the Commissioner cannot 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 vs. Sahebrao s/o Kachru Khandare and others, 2001 2 MhLJ 959.

(3.) The proposition that the Commissioner cannot be appointed to collect the evidence, need not be dilated. But, in each and every case, it cannot be said that the Commissioner appointed by the Court invoking its power under section 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 just conclusion.