1 903-wp-5715-2024 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO. 5715 OF 2024 Bhausaheb Yashwant Phatangare And Another VERSUS Ashok Ram Phatangare And Others ... Mr. D. M. Mane h/f Mr. P. A. Bharat, Advocate for the Petitioners Mr. Y. V. Kakde, Advocate for Respondent nos.1 to 4 ….. CORAM : AJIT B. KADETHANKAR, J. DATED : 29TH SEPTEMBER, 2026 P.C. :- . Heard. 2. The facts of the present case are of very peculiar nature. The respondents/plaintiffs instituted Regular Civil Suit No.181 of 2020 in the Court of learned Civil Judge Junior Division, Shevgaon seeking possession of 30R land encroached by the present petitioners/defendants from the land of the plaintiffs. The suit was presented on 31.08.2020, coupled with an application under Order XXVI Rule 9 of the Civil Procedure Code seeking appointment of Court Commissioner for measurement of land and for submission of a report before the Court. 2026:BHC-AUG:45806 2 903-wp-5715-2024 3. Subsequently, the defendants entered their appearance in the suit, filed their written statement and also extended a counter claim. The issues are yet to be framed. In the meantime, the plaintiffs pressed their application at Exhibit-08 filed under Order XXVI Rule 9 of the CPC. The defendants opposed the application contending that it was a premature one. However, the Trial Court vide order dated 15.03.2024 allowed plaintiffs’ application. The Trial Court appointed the Taluka Inspector Land Records, Shevgaon as a Court Commissioner to conduct joint as well as separate measurement of Gut No.194 and 743 situated at Bhatkudgaon, Tahsil Sevgaon, District Ahmednagar, and to submit an unambiguous measurement report alongwith a map showing encroachment. The appointment of the Court Commissioner and the object of the appointment is assailed by the defendants in this Writ Petition. 4. Mr. D. M. Mane h/f Mr. P. A. Bharat, learned Advocate for the petitioners submits that apparently, the application is premature one. He submits that a Court Commissioner cannot be appointed for the purpose of collecting evidence. He further submits that the Trial Court directed the Court Commissioner to produce a measurement map showing 3 903-wp-5715-2024 encroachment, which infact amounts to collection of evidence. With this, Mr. Mane prays to allow the Writ Petition. 5. Mr. Y. V. Kakde, learned Advocate for the plaintiffs/respondents would advocate the impugned order. He would submit that is is a trite law that whenever there is dispute as regards to the boundaries, the appropriate way is to appoint a Court Commissioner under Order XXVI Rule 9 of the Civil Procedure Code. He further submits that the Trial Court is absolutely justified in appointing the Court Commissioner. He would object that the Court Commissioner is appointed for collection of evidence. With this, Mr. Kakde prays to dismiss the Writ Petition. 6. I have heard both sides extensively. Apparently, the application for appointment of a Commissioner was filed alongwith Exhibit-1 i.e. alongwith the suit itself. As on today, although the defendants have filed their written statement denying the suit and also have filed counter claim, the issues are yet to be framed. In view thereof, I am of the considered view that the application is absolutely a premature one. There is no reason to disagree with the legal preposition that in a case involving a boundary dispute, the efficacious remedy 4 903-wp-5715-2024 would be to appoint a TILR as Court Commissioner. However, such application has to be filed at an appropriate stage. 7. This Court is surprised to note that although only the execution and operation of the order appointing Court Commissioner order was stayed, the Trial Court has not proceeded with the suit. 8. Mr. Kakde, learned Advocate vehemently submitted that this Court has taken a view that even before starting of the evidence, such application can be filed. However, appointment of Court Commissioner is such a thing to which the Court has to give consideration, based on the facts of each case. Suffice to note, object of appointment of Court Commissioner can never be to demonstrate an encroachment portion. This is so because it is the job of the Civil Court to define and to identify the encroachment based on the evidence placed on record by the party alleging encroachment. The Court Commissioner can only measure lands, prepare a map and to place it before the Court. In view thereof, I find that the impugned order cannot be sustained and the petition must succeed. Hence, I pass following order: 5 903-wp-5715-2024 ORDER a. Writ Petition stands allowed. b. Order dated 15.03.2024 passed below Exhibit-08 in Regular Civil Suit No.181 of 2020 by learned 2nd Joint Civil Judge Junior Division, Shevgaon is quashed and set aside. c. The plaintiffs are at liberty to file a fresh application seeking appointment of Court Commissioner at an appropriate stage. d. If such application is filed by the plaintiffs, the Trial Court shall decide the same on its own merits without being influenced by anything including its earlier order, but within the parameters of law. e. All contentions kept open. f. The Trial Court shall proceed with the suit and would conclude the same within a period of twelve (12) months from today. g. Writ Petition stands disposed of. ( AJIT B. KADETHANKAR, J. ) Rushikesh/2026