-1- 33-WP-6140-2026 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.6140 OF 2026 TATYARAO KASHINATH BANSODE VERSUS KAILASH KISAN BANSODE AND OTHERS ...… Mr. Vikrant Palshikar, Advocate for Petitioner. ...… CORAM : S. G. CHAPALGAONKAR, J. DATED : 22nd JUNE, 2026. PER COURT : 1. The petitioner takes exception to order dated 12.02.2026 passed below Exhibit-23 in Regular Civil Suit No.68 of 2015 by learned Civil Judge Junior Division, Sillod, whereby petitioner’s application for appointment of Court Commissioner has been rejected. 2. The petitioner instituted a suit seeking decree of possession of encroached portion admeasuring 13 R out of Gut nos. 70 and 71 as shown in sketch map appended to plaint. Respondents/defendants denied the claim of petitioner/plaintiff. In this backdrop, petitioner filed an application below Exhibit 23 seeking appointment of Court Commissioner for joint measurement and fixation of boundaries. The Trial Court declined to consider petitioner’s application on the ground that onus of proof lies on plaintiff to show that he is absolute owner and is entitled for possession thereof. It is further observed that allowing 2026:BHC-AUG:24555 -2- 33-WP-6140-2026 application of petitioner at this stage would constitute collection of evidence, which is not permissible under Order XXVI Rule 9 of Code of Civil Procedure. 3. This Court finds that issues are already framed in suit and plaintiff/petitioner will have to proceed to lead with evidence. He will have to prima facie established his ownership as regards to encroached land as described in plaint. Thereafter, issue would arise as to whether his land is encroached by defendant and decree for possession needs to be passed. 4. In this backdrop, this Court finds that present Writ Petition can be disposed of by granting liberty in favor of petitioner to move fresh application for appointment of a Court Commissioner after leading his evidence. At that stage, if such an application is filed, Trial Court will have to consider it afresh without influenced by observations made in impugned order. 5. The Writ Petition stands disposed of accordingly. (S. G. CHAPALGAONKAR) JUDGE Tandale