VIKRAM BABURAO PAWAR AND ANRversusMARIYAM AMIN MUKHI AND ANR

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                                IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                         CIVIL APPELLATE JURISDICTION
                                        WRIT PETITION NO. 8598 OF 2025
                                                         WITH
                                     INTERIM APPLICATION NO. 7779 OF 2026


                      1. Vikram Baburao Pawar,
                      Age 72 yeas, Occupation: Retired,
                      residing at B/2, Shining Star Cooperative
                      Society Limited, Daulat Nagar,
                      Relief Road, Santacruz (West),
                      Mumbai – 400 054.

                      2. Aishwarya Vikram Pawar,
                      through her C.A. Vikram B Pawar,
                      Age 42 years, Indian Inhabitant,
                      Residing at : 3571 Cydonia Court,
                      Dublin, CA 94568, USA.                                     ...Petitioners

                            Versus

                      1. Mariyam Amin Mukhi
                      Age 61 years, Indian Inhabitant,

                      2. Aaisha Noman Mukhi Alias Aaisha Amin
                      Mukhi,
                      Age 36 years, Indian Inhabitant,
ARUN
RAMCHANDRA
SANKPAL
                      both having address at 104, Monin Milk
Digitally signed by
                      Colony, Bungalow No.2, Western
ARUN RAMCHANDRA
SANKPAL
Date: 2026.10.08
                      Express Highway, Mira Road (East),
17:32:26 +0530                                                                …Respondents
                      Dist Thane 401 104.


                      Mr. Y. R. Mishra, with Upendra Lokegaonkar, for the Petitioners.
                      Mr. Ashutosh Gole, for the Respondents.

                                                  CORAM:          N. J. JAMADAR, J.
                                                  DATE :          7th OCTOBER 2026

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JUDGMENT:

1.    Rule. Rule made returnable forthwith and, with the consent of

the learned Counsel for the parties, heard finally.

2.     This Petition under Article 227 of the Constitution of India calls

in question the legality, propriety and correctness of an order dated 5 th

April 2025 passed by the learned Civil Judge, Vasai, in RCS No. 5 of

2022, whereby District Superintendent of Land Records has been

appointed as a Court Commissioner to visit the property, Survey No. 96,

Hissa No.4, and the properties bearing Survey Nos. 96/5, 92/11 and

92/12 of village Sasun Navhgar, Taluka Vasai, carry out a joint

measurement and ascertain whether the Plaintiffs have made any

encroachment on the property of the Defendants, and submit a report to

the Court.

3.    Background facts can be stated in brief as under:

3.1   The Respondents-Plaintiffs have instituted the suit to restrain the

Petitioners-Defendants from encroaching upon the property bearing

Survey No. 96 Hissa No.4 (“the suit property”) or any part thereof

and/or disturbing or obstructing the physical possession and enjoyment

of the Plaintiffs over the suit property.




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3.2   The Defendants are the holders of the plots bearing Survey Nos.

Survey Nos. 92/11, 92/12 and 96/5 located on the northern and

eastern boundaries of the suit property.

3.3   The Petitioners-Defendants assert that the officers of the Land

Records Department have also carried out the survey and measurement

of the suit property and the properties of the Defendants and

demarcated and fixed the boundaries of the respective properties. When

the Defendants started development work over their plot of land

bearing Survey No. 96/5, the Plaintiffs caused the obstruction. Yet, the

Plaintiffs have instituted the suit seeking injunction simplicitor.

3.4   In the said suit, the Plaintiffs filed an Application seeking

appointment of Taluka Inspector of Land Records as a Court

Commissioner to measure the suit property and the properties of the

Defendants.

3.5   By the impugned order, the learned Civil Judge was persuaded to

allow the Application opining that the dispute between the Plaintiffs

and Defendants was in respect of the boundaries of their respective

properties and, thus, a joint measurement of the suit property and the

properties of the Defendants was necessary.

3.6   Being aggrieved, the Defendants have preferred this Petition.

4.      I have heard, Mr. Y. R. Mishra, the learned Counsel for the

Petitioners, and Mr. Ashutosh Gole, the learned Counsel for


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Respondents, at some length. With the assistance of the learned Counsel

for the parties, I have also perused the material on record.

5.    Mr. Y. R. Mishra, the learned Counsel for the Petitioners,

submitted that the learned Civil Judge committed a manifest error in

law in directing the appointment of the Court Commissioner to measure

the suit property and the properties of the Defendants, when the

Plaintiffs had instituted the suit for injunction simplicitor only. The

appointment of the Court Commissioner in such a situation amounts to

the Court lending its assistance in the collection of the evidence. No

material was placed on record to demonstrate that the Defendants had

either committed or threatened to commit encroachment over any

portion of the suit property.

6.    Mr. Mishra submitted that the entire exercise was actuated by a

design to pre-empt the action by the Defendants, as the measurements

already carried out by the officers of the Land Records Department

belied the case sought to be set up by the Plaintiffs. In fact, the Plaintiffs

had preferred Appeals against the measurement and demarcation of

boundaries and the Second Appeal came to be dismissed by the Deputy

Director of Land Records, by a judgment and order dated 3 rd June 2024.

Despite the confirmation of the earlier survey and measurement by the

Authorities under the Maharashtra Land Revenue Code, 1966 (“MLRC

Code”), the learned Civil Judge directed the appointment of the Court


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Commissioner without ascribing any justifiable reason. Therefore, the

impugned order deserves to be quashed and set aside, submitted by Mr.

Mishra.

7.    Per contract, Mr. Ashutosh Gole, the learned Counsel for the

Respondents, supported the impugned order. It was submitted that

though the suit was for injunction simplicitor, yet, the real dispute

between the parties was that of demarcation of the boundaries. In such

situation,   according   to   Mr.   Gole,    appointment   of   the   Court

Commissioner to have a joint measurement of the suit property as well

as the adjoining properties of the Defendants was necessary for a just

decision of the case. Without disputing the fact that the Plaintiffs had

preferred an Appeal against the order passed by the Superintendent of

Land Records, confirming the earlier measurements maps, Mr. Gole

would urge that, the said decision wold not bear upon the exercise of

discretionary power by the Civil Court under Order XXVI Rule 9 of the

Code of Civil Procedure, 1908 (“the Code”).

8.    Mr. Gole further submitted that, this Court, in exercise of its

supervisory jurisdiction, need not interfere with a such a discretionary

order passed by the trial Court.

9.    To buttress the aforesaid submission, Mr. Gole placed reliance on

a judgment of a learned Single Judge of this Court in the case of




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Vachhalabai W/o Kundlik Gavane and Ors Vs Chinkaji S/o Malhari

Gavane and Ors.1

10.   I have given anxious consideration to the submissions canvassed

across the bar.

11.   To start with, it is necessary to note the nature of the Plaintiffs

claim. The Plaintiffs assert that the Defendants who are the owners of

the adjoining plots started development of the suit property. The District

Superintendent of Land Records, according to the Plaintiffs, had carried

out the survey and measured the properties on 24 th March 2021 in a

hurried manner and in collusion with the Defendants. The map

prepared pursuant to the survey carried out by the District

Superintendent of Land Records, does not depict the correct position at

the site. On the basis of the said map, the Defendants threatened to

cause obstruction to the possession and enjoyment of the Plaintiffs over

the suit property. Thus, reserving their right to file an Appeal before the

Appellate Authority qua the map dated 24 th March 2021, prepared by

the District Inspector of Land Records, the Plaintiffs instituted the suit

for injunction simplicitor.

12.   Evidently, from the very averments in the Plaint, it becomes

abundantly clear that the Plaintiffs professed to assail the legality and

correctness of the survey and measurement carried out by the District

Inspector of Land Records on 24 th March 2021 and the map prepared

1     2012 (4) Mh L J 198.
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pursuant thereto. It would be contextually relevant to note that, the

Plaintiffs had preferred an Appeal before the Superintendent of Land

Records in respect of MR No. 8541/2021, dated 24 th March 2021. By a

judgment and order dated 30th December 2022, the said Appeal, came

to be dismissed and the said map prepared by the District Inspector of

Land Records, came to be affirmed. The Plaintiffs carried the matter

further in Appeal S.R. No. 191/2023/2024, before the Deputy Director

of Land Records, Konkan Division. The said Appeal was also dismissed

by the Deputy Director of Land Records, by a judgment and order dated

3rd June 2024.

13.   It appears that the aforesaid developments and orders passed by

the Authorities under the MLRC, 1966, were brought to the notice of

the learned Civil Judge, yet, the learned Civil Judge was persuaded to

again appointed District Superintendent of Land Records as the Court

Commissioner to have a joint measurement on the properties as the

dispute between the Plaintiffs and Defendants was in respect of the

boundaries and, thus, the joint measurement was necessary.

14.   Whether the aforesaid approach of the learned Civil Judge is

justifiable? First and foremost, it is necessary to note that the suit was

instituted for injunction simplicitor. It was nowhere the case of the

Plaintiffs that the Defendants had committed encroachment over a

particular portion of the suit property. On the contrary, the suit was in


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the nature of a pre-emptive action in the wake of the survey and

measurement carried out by the District Inspector of Land Records on

24th March 2021. The Plaintiffs explicitly assailed the legality and

validity of the said measurement and map prepared pursuant thereto.

15.   Undoubtedly, where the dispute is in respect of demarcation of

the boundaries, to elucidate the matter in controversy, it would be

appropriate for the Court to direct the local investigation in the nature

of joint survey and measurement of the properties by appointing a

Commissioner, under the provisions of Order XXVI Rule 9 of the Code.

However, the said power ought to be exercised in a judicious manner. A

host of factors like the nature of the suit, reliefs sought therein, the

stage of the suit and existence of such a dispute as would warrant the

appointment of the Court Commissioner to elucidate the matter in

controversy, bear upon the exercise of discretion. It is trite, the Court

Commissioner cannot be appointed for the purpose of collection of

evidence.

16.   In the case of   Sanjay Namdeo Khandare Vs Sahebrao Kachru

Khandare and Ors,2 the trial Court had appointed the Court

Commissioner, empowering him to visit and inspect the spot, being the

suit field, and to submit a report regarding actual possession of the suit

field. This Court interfered with the said order observing that, that

would tantamount to appointing Court Commissioner for collecting

2     2001(2) Mh LJ 959.
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evidence regarding possession. It was well-settled law that the Court

Commissioner cannot be appointed for collecting evidence.

17.   In the case of Dnyandeo Vithal Salke and Ors Vs Dagdu Kadar

Inamdar3 this Court interfered with an order passed by the Civil Court

appointing Taluka Inspector of Land Records with a direction to submit

his report as regards possession or user of the land. It was observed

that, such an order amounts to collection of evidence, which was not

the object of the provisions of Order XXVI Rule 9 of the Code.

18.   In the case of Sanjay Kisan Thorat and Ors Vs Ramchandra Parsu

Thorat and Anr,4 where the suit was instituted for injunction and the

Court Commissioner was appointed to bring on record the factual

position on site, this Court interfered with the said order observing,

inter alia, as under:

      “10.   The main intention and object of the Respondents in
      filing such application appears to be, only to bring on record the
      existence of the house, bio-gas, toilet, open space, agricultural
      land, two water chambers, pipeline, trees of Mango and
      Coconut etc. In respect of these very matters, Respondents are
      seeking the relief of interim injunction and in order to get that
      relief, they want to bring this evidence on record about its
      location and existence.
      11.    Hence, as rightly submitted by learned counsel for the
      Petitioners, the law in this respect is fairly well settled, as held
      by this Court time and again and also in the authority relied


3     2017 (3) Mh L J 314.
4     2018 (2) Mh L J 954.
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      upon by learned counsel for the Petitioners that of Dnyandeo
      Vithal Salke & Ors. Vs. Dagdu Kadar Inamdar (Supra),        that,
      “The appointment of 'Court Commissioner', even that of T.I.L.R.,
      to submit the factual report as regards possession or user of the
      land is amounting to collection of evidence and it is not
      permissible in law.”
      12.   When the Respondents are coming before the Court with
      a specific case of the existence of their house, bio-gas, toilet,
      open space, agricultural land, two water chambers, pipeline,
      trees of Mango and Coconut etc., the burden lies upon them to
      prove the said existence and their location. They cannot, under
      the pretext of appointment of T.I.L.R. as a 'Court Commissioner',
      when the measurement of the lands is already done at their
      instance only and the boundaries are also fixed, seek
      appointment of 'Court Commissioner' to bring on record the
      factual position at the site, so as to help them in proving their
      case for interim injunction. The Trial Court has not considered
      this settled position of law and, therefore, the impugned order
      passed by the Trial Court needs to be quashed and set aside.”



19.   In the light of the aforesaid legal position, reverting to the facts of

the case at hand, incontrovertibly, the District Inspector of Land Records

had carried out the survey and measured the lands and submitted the

report on 24th March 2021. The said report was assailed by the Plaintiffs

initially before the Superintendent of Land Records and, thereafter,

before the Deputy Director of Land Records. The said report, prima

facie, indicated purported encroachment over the property of the

Defendants and that was the reason for the Plaintiffs to assail the said


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report, by filing Appeals under the MLRC, 1966. Both the appeals were

dismissed.

20.   In the aforesaid context, it is interesting to note the nature of the

directions issued by the trial Court in the impugned order. The trial

Court directed the District Superintendent of Land Records to carry out

a joint measurement of the properties and to ascertain whether the

Plaintiffs have made any encroachment over the property of the

Defendants.

21.    The aforesaid direction, in a suit instituted by the Plaintiffs for

injunction simplicitor, clearly partook the character of the Court lending

its assistance for the collection of evidence. It is not the case that the

cadastral surveyors, who carried out the earlier measurements and

submitted maps, were examined by the parities before the Court and,

thereafter, the Court considered it necessary to appoint a fresh

Commission to elucidate the matter in controversy. On the contrary, the

exercise was actuated by a design to pre-empt the action on the part of

the Defendants on the basis of the earlier report of the survey and

measurement, the challenge to which at the instance of the Plaintiffs

failed. Furthermore, the suit was for injunction simplicitor and no

declaration was sought in regard to the earlier measurement report and

map. Prima facie, it appeared that the earlier measurement and map

were sought to be obliterated by having a fresh survey and


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measurement in the suit, though legality and validity thereof was not

under challenge therein.

22.   Reliance placed by Mr. Gole on the decision in the case of

Vachhalabai W/o Kundlik Gavane (Supra) is of no assistance to the

Respondents as, in that case, the suit was instituted for removal of

encroachment and recovery of possession and there were two

conflicting reports and, thus, this Court considered it appropriate to

direct the appointment of the Court Commissioner to have the joint

measurement of the subject land.

23.   The conspectus of the aforesaid consideration is that the learned

Civil Judge did not exercise the discretion to appoint the Court

Commissioner in consonance with the settled principles of law. The

Court Commissioner was appointed in a suit instituted by the Plaintiffs

for injunction simplicitor, to ascertain as to whether the Plaintiffs had

committed encroachment over the property of the Defendants. The

learned Civil Judge thus completely misdirected himself in appointing

the Court Commissioner for the purpose of ascertainment of the

encroachment by the Plaintiffs over the property of the Defendants,

when the reports of earlier survey and measurement were already on

record and had attained finality.

24.   For the foregoing reasons, the Petition deserves to be allowed.

25.   Hence, the following order:


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                            :ORDER:

      (i)    The Petition stands allowed.

      (ii)   The impugned order dated 5th April 2025

      stands quashed and set aside.

      (iii) The Application preferred by the Plaintiffs for

      the appointment of the Court Commissioner stands

      rejected.

      (iv)   It   is   clarified     that     the   observations

      hereinabove were confined to test the legality,

      propriety and correctness of the impugned order,

      and, this Court may not be understood to have

      expressed any opinion on the merits of the case.

      (v)    Rule made absolute in the aforesaid terms.

      (vi)   In view of the disposal of the Petition, the

      Interim Application also stands disposed.

      No costs.

                                            [N. J. JAMADAR, J.]




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