945-WP-4285-2022.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 4285 OF 2022 Ishwar Sukdev Chopde VERSUS Vijya Anant Dalal *** • Mr. G. V. Wani, Advocate for the Petitioner • None for the Respondent *** CORAM : R. M. JOSHI, J DATE : FEBRUARY 11, 2025 PER COURT : 1. This Petition takes exception to the order dated 28.01.2022 passed below Exh. 85 in RCS No. 87/2012 whereby application filed by the Petitioner/Plaintiff for appointment of the Court Commissioner to ascertain actual condition and position of the suit property which came to be dismissed. 2. Heard learned Counsel for the Petitioner. None for the Respondent. 3. Perusal of the plaint indicates that suit is filed for seeking declaration that the sale deed dated 30.05.2005 in favour of Defendant in respect of Gut No. 401/2 is nominal. Injunction is also sought against the Umesh PAGE 1 OF 3 2025:BHC-AUG:3972 945-WP-4285-2022.odt Defendant in respect of suit property. It is the case of the Plaintiff that though sale deed is executed, it is not the actual transaction of sale nor there was any parting of the possession by the vendor of the purchaser/Defendant. 4. These facts indicate that this is not the case wherein there is any dispute about measurement of the property or identification thereof. In such circumstances, it was not open for the Plaintiff to invoke provision of Order XXVI, Rule 9 of the Code of Civil Procedure for appointment of the Court Commissioner. It is not permissible for the party to prove possession over the suit property through evidence of the Court Commissioner. The party has to prove the same with independent evidence. Trial Court has rightly taken into consideration the facts of the case and law on the subject. In such circumstances, there is no reason for this Court to cause interference in the impugned order by exercising writ jurisdiction. 5. In view of above discussion, Petition stands dismissed. Umesh PAGE 2 OF 3 945-WP-4285-2022.odt 6. Since the proceedings before the Trial Court is pending for more than 10 years, Trial Court to decide the same within the period of six months from today. (R. M. JOSHI, J.) Umesh PAGE 3 OF 3