1 928-wp-10528-2024 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 10528 OF 2024 Sanjay Sopanrao Kendre VERSUS Shobha Laxmikantrao Ganjewar And Another ... Mr. B. R. Kedar, Advocate for the Petitioner Mr. S. V. Natu, Advocate for Respondent nos.1 and 2 ….. CORAM : AJIT B. KADETHANKAR, J. DATED : 22ND SEPTEMBER, 2026 P.C. :- . Special Civil Suit No.95 of 2015 came to be filed by present respondents against the present petitioner seeking decree of declaration of ownership in respect of plot nos.95 and 96, situated at gut no.85 and 86 of Mauja Kautha, Tq. and Dist. Nanded. A consequential relief of recovery of possession and perpetual injunction was also prayed. The sum and substance of plaintiffs’ case is that the defendant/present petitioner has encroached their plots and hence they sought declaration of ownership and recovery of possession from the petitioner. 2. The suit is defended by the petitioner by filing a written statement. Issues were framed and evidence was recorded. 2026:BHC-AUG:43183 2 928-wp-10528-2024 After evidence of the plaintiff was completed, during the course of recording the evidence of the defendant, plaintiffs moved an application under Order XXVI Rule 9 before the Trial Court below Exhibit 93 seeking appointment of Court Commissioner. The plaintiffs sought to justify the application by contenting that despite making strenuous efforts to collect the documents and record from the office of the Land Records, they could not procure the same and hence, they were constrained to file the application. 3. The application was opposed by the petitioner. However, for the reasons recorded in the order, the Trial Court vide order dated 13.08.2024 allowed the said application. 4. Feeling aggrieved thereby, defendant is before this Court. 5. Mr. B. R. Kedar, learned Advocate for the petitioner would invite my attention to the observations of the Trial Court at paragraph no.6. He would submit that the intention of the Court is to ascertain the possession of respective parties over the suit properties. He submits that for such purpose, Commissioner can not be appointed. Then, he would further 3 928-wp-10528-2024 submits that it is for the plaintiffs to prove their case with their independent evidence and not by collecting the evidence by way of appointing the Court Commissioner. With this, Mr. Kedar concludes his argument and requests to allow the Writ Petition. 6. Mr. S. V. Natu, learned Advocate for the respondents would advocate the findings rendered by the Trial Court. He would submit that the application was self explanatory. Even today, it is the contention of the respondents that since there was no record available from the City Survey/Land Records Office, respondents had no other option than to file the said application. Mr. Natu disputes that the application was filed to collect the evidence and that the Trial Court has committed any error while passing the said order. 7. I have heard both the sides extensively. True that it is a matter in respect of recovery of possession following removal of alleged encroachment. The suit properties forms a part of layout as per the contentions of the plaintiffs. Recitals of Exhibit-1 of the Petition i.e. plaint show that the plaintiffs have given clear description of the suit properties including the four boundaries. 4 928-wp-10528-2024 8. Now, the issue is as to whether the petitioner/defendant has encroached the properties owned by the plaintiffs. The layout is available on record. Obviously, a Commissioner cannot ordinarily be appointed merely for the purpose of identifying the possession of a party over a particular piece of land. For such intention, certainly a Commission can not be issued. 9. Mr. Kedar, learned Advocate for the petitioner is justified in submitting that the Trial Court erred in observing that in order to ascertain as to who is in possession of each plot, cadastral Surveyor of Deputy Land Records was required to be appointed as Court Commissioner to measure not only the suit properties but also the plots of defendant no.1. 10. Mr. Natu has also pointed out that the Trial Court while appointing the Commissioner has directed to measure the properties of plaintiffs and defendant no.1 as per the layout annexed to the sale deeds of respective parties. 11. On this backdrop, I am of the view that the Writ Petition can be disposed of by keeping the order passed by the Trial Court for appointment of a Court Commissioner intact, subject to certain clarification. Hence, I pass following order: 5 928-wp-10528-2024 ORDER a. Writ Petition stands partly allowed. b. The clause no.2 of the impugned order dated 13.08.2024 is modified as under: 2) The Cadastral Surveyor from Office of Deputy Superintendent of Land Records is hereby appointed as Court Commissioner to measure the properties of the parties as per the sanctioned layout, prepare a map of current situation on the field and produce the same before the Court. c. The petitioner is permitted to supply documents of acquisition of land to the Court Commissioner. Court Commissioner while executing the commission shall take into consideration those documents. d. Needless to mention, report shall be subject to objections. e. Writ Petition stands disposed of. ( AJIT B. KADETHANKAR, J. ) Rushikesh/2026