YASIN GULAB SHKALKAR Vs. MARUTI NAGNATH ANWARE

JUDGEMENT

(1.) Rule. Rule made returnable forthwith. With consent of both the sides, the petition is taken up for fnal hearing.

(2.) Order dtd. 15/12/2021 passed by the District Judge, Solapur rejecting Petitioner's application for appointment of Court Commissioner for measurement of lands during pendency of Appeal is the subject matter of challenge in the present Petition.

(3.) Petitioner / plaintiff instituted a Regular Civil Suit No.62 of 2010 for permanent injunction as well as for recovery of possession of encroached portion of land. During pendency of the Suit, Petitioner/plaintiff fled an application under the provisions of Order 26 Rule 9 of Civil Procedure Code, 1908 ("Code") for appointment of Court Commissioner for measurement of lands and fiing of boundaries. The Trial Court was pleased to allow the application vide its order dtd. 1/8/2011 and Taluka Inspector of Land Record ("TILR") came to be appointed as the Court Commissioner for conducting joint measurement of lands bearing Gat Nos. 137/3/A, 137/3/B, 137/2/B/1 and 122 and to indicate the boundaries of lands in possession of the respective parties. TILR conducted measurement of lands and fled his report along with a copy of map. He was eiamined as a witness in the Trial Court. The report of the TILR was prima facie in favour of Plaintiff / Petitioner. However, during the course of arguments in the Suit, the validity of report of the TILR was questioned raising various technical objections and also about the manner in which the measurements were conducted. The Trial Court therefore proceeded to dismiss the Suit vide its judgment and order dtd. 24/7/2018. Plaintiff / Petitioner has preferred a Regular Civil Appeal No.189 of 2018 before the Court of District Court, Solapur. In this Appeal, Plaintiff / Petitioner fled an application for appointment of Court Commissioner for re-measurement of lands on the premise that the earlier measurements conducted were defective. The District Judge has proceeded to reject the application by the impugned judgment and order dtd. 15/12/2021.