29-wp-1585-2016.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIRCUIT BENCH AT KOLHAPUR CIVIL APPELLATE JURISDICTION WRIT PETITION NO.1585 OF 2016 WITH INTERIM APPLICATION NO. 534 OF 2026 Ashok Ramchandra Palekar & Ors. …..Petitioners Vs. Raghunath Keshav Palekar & Ors. …..Respondents Mr. P. D. Dalvi, i/b. Mr. Girish R. Agrawal, for the Petitioners. Mr. Dilip Bodake with Mr. Sharad T. Bhosale, for the Respondent Nos.1 to 4. CORAM : ANIL L. PANSARE, J. DATED : 23rd APRIL 2026 P.C.:- 1. Heard. 2. The challenge is to order dated 27th October 2015 passed below Exhibit 32 in Special Civil Suit No.1 of 2013 by Civil Judge, Senior Division, Karad. The Respondent Nos.1 to 4/the original plaintiffs have filed a suit for partition. By way of an additional prayer, the original plaintiffs have also sought a decree of payment of Rs.5,50,000/-, which according to the original plaintiffs, is the expenses made for development of the agricultural land (subject matter of the suit). Gaikwad RD 1/3 29-wp-1585-2016.doc 3. The Petitioners/original defendant Nos.1 to 3 approached the trial Court seeking appointment of Court Commissioner under Order 26 Rule 9 of the Code of Civil Procedure. The Petitioners had as such denied the expenses allegedly put in by the Respondent Nos.1 to 4 in developing the agricultural land, they have, however, averred in the application that the parties to the suit and other joint owners are taking water from the common well for Survey No.404 and 374. There is further averment in respect of taking water from borewell by the parties to cultivate the agricultural land bearing Survey Nos.404 and 374. 4. In context with the aforesaid pleadings, when a query was made with the counsel for the Petitioners as to why the Petitioners averred and referred to “other joint owners”, the counsel appeared clueless. He submits that the position might be that there are other joint owners or the reference may be for other defendants. This argument is obviously not sustainable. Once the Petitioners referred to “plaintiffs and defendants as joint owners”, the other defendants will stand included. The counsel for Petitioners, however, submits that this part of averment is not relevant to decide the appointment of Court Commissioner. Gaikwad RD 2/3 29-wp-1585-2016.doc 5. Thus, what is relevant is that there is dispute about Respondent Nos.1 to 4/original plaintiffs incurring expenses to the tune of Rs.5,50,000/- in developing the agricultural land under question. 6. In context with such a plea, the trial Court has held that the burden is upon the Respondent Nos.1 to 4/the original plaintiffs to justify the expenses and, therefore, the Petitioners/original defendant Nos.1 to 3 cannot seek appointment of Court Commissioner for inspection of property. 7. This finding appears to be in tune with the provisions of law. Since, it is a case of original plaintiffs that they have incurred certain expenses in developing the agricultural land, the burden will be upon the plaintiffs. The defendants cannot take assistance of Court Commissioner on this point, which otherwise, would amount to collecting evidence. 8. That being so, there is no substance in the petition. The Petition is accordingly dismissed. 9. In view of dismissal of Writ Petition, the Interim Application pending therein shall also stand disposed of. (ANIL L. PANSARE, J.) Gaikwad RD 3/3 RAJU DATTATRAYA GAIKWAD Digitally signed by RAJU DATTATRAYA GAIKWAD Date: 2026.04.24 19:48:18 +0530