DNYANDEO VITHAL SALKE Vs. DAGDU KADAR INAMDAR

JUDGEMENT

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

(2.) Admittedly, the suit has been filed for injunction simpliciter and there is no prayer for removal of encroachment. Application (Exh.5) seeked temporary injunction against the petitioners-original defendants filed by respondent-original plaintiff was rejected on 29.09.2016 on the ground that the original plaintiff could not establish prima facie case in his favour and he could not prima facie show which property was in his possession. When the suit has been filed for injunction simpliciter, I do not understand as to how the Civil Judge, Junior Division could have passed order directing appointment of T.I.L.R., with direction to submit his factual report as regards possession and user of the land. This amounts to collection of evidence which is not the object of the provisions regarding appointment of the Court Commissioner, as contained in Order 26, Rule 9 of the Civil Procedure Code. The learned Single Judge (As the Honourable Judge then) in the case of Sanjay Namdeo Khandare Vs. Sahebrao Kachru Khandare and Ors., 2001 (2) Mh.L.J.959 has also taken a view that appointing the Court Commissioner to submit his report regarding actual possession of the suit field would amount to making effort to collect evidence regarding possession and the same is not permissible in the law.

(3.) It may be true that the petitioners have conceded for appointment of the Court Commissioner, but, such concession firstly was only regarding taking of measurement and not for submitting report to ascertain actual possession and secondly any concession given by the party would be subject to provision of law and if it goes against the provision of law, such concession would be insignificant and will have to be ignored. This principle has been ignored by the learned Trial Court.