JANBA BABU GADE Vs. DEVIDAS BABU ZAKANE

JUDGEMENT

(1.) THE Petitioner by this Petition impugns the Order dated 14th June, 1994 passed below Exhibit 13 in Regular Civil Suit No.116 of 1992 whereby the Petitioner's application for appointment of Court Commissioner has been rejected.

(2.) THE facts of the case are that the Petitioner claims to be the owner of property bearing Gat No.51/1 admeasuring 5 acres and 26 gunthas situated at Village Rajuri, Taluka Karmala. It was the case of the Petitioner that the Respondents are the adjoining owners and they had encroached in a portion of the land belonging to the Petitioner. For the purpose of ascertaining the exact encroachment and to enable the Court to effectively decide the controversy arising in the matter the Petitioner moved an application in terms of order XXVI rule 9 of the Code of Civil Procedure, 1908. The Trial Court rejected the said application the ground that the Petitioner has not filed the suit for declaration of his ownership and possession and consequently dismissed the said application.

(3.) IN view of the aforesaid, Order dated 14th June 1994 passed below Exhibit 13 in Regular Civil Suit No.116 of 192 by the Civil Judge, Junior Division, Karmala is quashed and set aside. Exhibit 13 in Regular Civil Suit No.116 of 1993 is allowed. The Trial Court to appoint the Court Commissioner in terms of the said application within 30 days of the receipt of the writ of this order.