MALAPPA BHIKAPPA BIRADAR Vs. AAMSIDHA BHIKAPPA BIRADAR

JUDGEMENT

(1.) This Petition is by Defendant to R.C.S. No. 563/2019. Respondent-Plaintiff took out aforesaid Suit thereby questioning the order of the Mamlatdar passed under Sec. 5 seeking declaration that the same is not binding. Further injunction is sought in relation to use of a way and also mandatory injunction to re-fix electric gadgets with other ancillary reliefs.

(2.) Vide impugned order dtd. 13/09/2019, the Trial Court under Exhibit 19, in exercise of powers under Order XXVI Rule 9 of Code of Civil Procedure, 1908, appointed Court Commissioner with following directions:

(3.) Petitioner-Defendant while questioning the same, while drawing support from the Judgment of this Court in the matter of Sanjay Kisan Thorat Vs. Ramchandra Parsu Thorat, [2018 (2) Mh.L.J. 954] would urge that powers for appointment of Court Commissioner cannot be passed so as to collect the evidence. So as to substantiate his contentions, he has relied on the very claim put forth by the Petitioner-Defendant in the written statement, reply to the Exh. 19, so also observations of the Trial Court. According to him, since the proceedings by way of impugned order cannot be used for the purpose of collection of evidence so as to strengthen the case of the Respondent-Plaintiff, order warrants interference.