1 of 4 55-WP.301.2020 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD 55 WRIT PETITION NO. 301 OF 2020 CHANDRASENA PANDHARINATH GUNALE THROUGH LRS ASHISH PANDHARINATH GUNALE AND ANOTHER VERSUS LATUR DISTRICT CENTRAL CO OPERATIVE BANK LTD THROUGH ITS MANAGING DIRECTOR ... Mr. Jayant R. Patil, Advocate for the Petitioners. Mr. Ashwin V. Hon, Advocate for Respondent. ... CORAM : SIDDHESHWAR S. THOMBRE, J. DATE : 24rd MARCH 2026 P.C.:- 1. Heard learned Advocates for the respective parties. 2. By the present petition, the Petitioners are aggrieved by the order dated 16.10.2019 passed below Exhibit-79 by the learned 2nd Joint Civil Judge, Junior Division, Ahmedpur, District Latur in R.C.S. No.649 of 2015, whereby the application filed by the Respondent under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, came to be allowed. 3. Mr. Jayant R. Patil, learned Advocate for the Petitioners submits that the Respondent–Bank has instituted R.C.S. No.649 of 2015 for declaration of ownership, possession, and mandatory injunction in respect of property bearing M.C. No.1, 2 and 3 situated at Ahmedpur, District Latur. Petitioner Nos.1 and 2 filed their written Tauseef 2026:BHC-AUG:13402 2 of 4 55-WP.301.2020 statements and Petitioner No.3 adopted the same. The Respondent thereafter filed an application below Exhibit-79 seeking appointment of a Court Commissioner for local investigation of the suit property. The Petitioners opposed the said application on the ground that it amounts to collection of evidence. However, the learned Trial Court allowed the application. Hence, it is submitted that the impugned order deserves to be set aside. 4. Per contra, Mr. Ashwin V. Hon, learned Advocate for the Respondent supports the impugned order by contending that the appointment of a Court Commissioner is necessary to ascertain whether there is actual encroachment over the suit property. 5. Having heard the learned Advocates for the respective parties and upon perusal of the record, it appears that the Respondent has filed the suit for declaration of ownership, recovery of possession, and mandatory injunction. It is the contention of the Petitioners that both parties have already led oral as well as documentary evidence and the matter was fixed for final arguments. Despite the same, the Respondent filed the present application, which, according to the Petitioners, ought not to have been allowed at such a belated stage. 6. It is not in dispute that the evidence of both sides has been completed and the matter was posted for arguments. 7. A perusal of the application filed by the Respondent indicates Tauseef 3 of 4 55-WP.301.2020 an allegation that on 26.09.2015, the Original Defendants/Petitioners encroached upon the suit property by demolishing gardens and plants. It is also stated that the Defendants were put in possession of their property on 10.08.2015. 8. The Trial Court made observation that the suit pertains to encroachment and recovery of the encroached portion appears to be contrary to the record. The suit is essentially for declaration and recovery of possession. Moreover, in the earlier proceedings being R.C.S. No.41 of 2013 (old No.125/2008), a Court Commissioner i.e., T.I.L.R., Ahmedpur, had already been appointed and a map was prepared. The said map, produced on record, placed at page No.39 clearly reflects the measurements of the respective properties, namely, 155 × 56 feet for the Petitioners and 95 × 70.6 feet for the Respondent. In view of the earlier adjudication and the material already available on record, the necessity of appointing a fresh Court Commissioner at the stage of final arguments does not arise. 9. In the above circumstances, this Court is of the opinion that the Petitioners have made out a case for interference. 10. Hence, the present writ petition is allowed. 11. The order dated 16.10.2019 passed below Exhibit-79 by the Tauseef 4 of 4 55-WP.301.2020 learned 2nd Joint Civil Judge, Junior Division, Ahmedpur, District Latur in R.C.S. No.649 of 2015 is quashed and set aside. 12. Considering that the suit is of the year 2015, the Trial Court is directed to decide the same expeditiously, preferably within a period of one year from today. (SIDDHESHWAR S. THOMBRE, J.) Tauseef