YESHWANT RAYA LAAD Vs. DURGANAND RAMNATH SAWARDEKAR

JUDGEMENT

(1.) HEARD Shri Vaze on behalf of the petitioner. The respondents have chosen to remain absent.

(2.) THE petitioner is the plaintiff in RCS No. 182/2000/a. Challenge in this petition, at the behest of the said plaintiff, is to the order dated 20/03/2001 by which the learned Civil Judge, Senior Division has ordered appointment of another Commissioner to survey the properties, using Theodolite method of survey.

(3.) THERE is no dispute that there was a dispute as regards the common boundary of the property of the plaintiff and the defendants (respondents, herein ). At one stage, a tree was cut and to find out from which portion it was cut, a commissioner was appointed at the behest of the plaintiff. Thereafter, the Commissioner inspected the site for the first time on 17/11/1999 but in the absence of the defendants. Subsequently, the Commissioner inspected the site in the presence of both the parties and resubmitted the report on 19/04/2000. This report was accepted by both the parties as can be seen from the roznama dated 4/08/2000. The Commissioner appointed, has also opined that the distance measured by him taking the stone lying at the border between Survey No. 90/25 and 90/24 is correct and no cross checking is required. This can be seen from para 10 of the impugned order. Shri Vaze, the learned Counsel on behalf of the petitioner contends that once the report of the Commissioner was accepted by both the parties on 4/08/2000, there was no question of the defendants filing another application on 13/09/2000 for the purpose of cross checking the findings arrived at by another Commissioner by using Theodolite method. In my view, the plaintiff is right. Once the Commissioner had opined that the distance measured by him taking the stone lying at the border between Survey No. 90/25 and 90/24 was correct and required no further cross checking and once the report given by the Commissioner was accepted by the parties, there was no question of any other Commissioner being appointed to carry out the survey by using another method. It appears that the impugned order came to be passed by the learned Civil Judge, Senior Division unmindful of the agreement arrived at between the parties, as regards the report of the Commissioner.