Smt. Nalubai Narayan Shinde, Anil Narayan Shinde, Sanjay Narayan Shinde and Ganesh Narayan Shinde vs Gopinath Dagdu Shinde

A.A. Sayed, J.—Rule. Rule made returnable forthwith. By consent, petition is heard finally.

The order dated 7/1/2010 passed by the Joint Civil Judge, Junior Division, Ahmednagar is subjected to challenge in this Petition. By that order, the application of the Respondent/orig. deft. under Order XXVI Rule 9 CPC for appointment of Court Commissioner came to be allowed.

The impugned order is passed appointing an advocate as Court Commissioner to visit the spot in question and to submit a report in respect of possession of the suit property. The learned Counsel for the Petitioner submitted that no commissioner can be appointed by the Court to collect evidence. He has relied upon the following cases in support of his contention:

I. Sanjay Khandare Vs. Sahebrao Khandare and Others, .

II. Shri Efigenio Dias and Another Vs. Shri Malaquias D''Costa and Others, .

III. Puttappa v. Ramappa reported in AIR 1996 Kar 257.

In the aforementioned cases, it is held that the Court Commissioner cannot be appointed to find out as to who is in actual possession of the suit field.

The learned Counsel for the Respondent, on the other hand, relied upon a decision of learned Single Judge of this Court (Nagpur Bench) in the case of Kashinath Chindhuji Shastri v. Haribhau Nathuji Bawanthade reported in 2006 B C.R. 1018, wherein, the learned Single Judge has held that in absence of map of site showing the portion which was encroached upon, the decree becomes meaningless and remanded back the matter to the trial Court for a fresh decision after appointment of commissioner under Order XXVI Rule 9 of C.P.C.

I have considered the rival contentions of the parties and in my view, the impugned order cannot be sustained in view of the decision of this Court in the cases of SanjayNamdeo Khandare (supra) relied upon by the learned Counsel for the Petitioner. It is well settled that Commissioner cannot be appointed to find out as to who is in possession of the suit field/suit premises.

In so far as the case relied upon by the learned Counsel for the Respondent is concerned, that was a case of an encroachment. The present case is neither of an encroachment nor a boundary dispute.

In these circumstances, the impugned order which has the effect of collecting evidence by the Court Commissioner, is unsustainable and is required to be set aside and accordingly set aside. Rule is made absolute accordingly with no order as to costs.