Bombay High Court

MACHHINDRA GANGARAM GADEKARversusTHE STATE OF MAHARASHTRA AND OTHERS

Disposal: DISPOSED OFF
Bench: S G CHAPALGAONKAR

Holding

The appointment of a Court Commissioner would amount to collection of evidence and is not permitted under Order XXVI Rule 9 of the CPC.

Summary

The petitioner, a plaintiff in a civil suit seeking declaration of ownership and perpetual injunction over 3 acres of land, filed a writ petition challenging the trial court's order rejecting his application for appointment of a Court Commissioner under Order XXVI Rule 9 of the CPC. The petitioner argued that the defendants disputed the western boundary of the suit land, necessitating a commissioner to ascertain the true boundaries and ownership. The trial court held that appointing a commissioner would amount to collection of evidence on possession, which is not permissible under the CPC. The High Court affirmed this view, noting that the dispute did not amount to a boundary demarcation claim and that the plaintiff had not sought fixation of boundaries. Consequently, the writ petition was dismissed.

Issues considered

Whether the appointment of a Court Commissioner under Order XXVI Rule 9 of the CPC is permissible when the dispute concerns the western boundary of the suit property.
Whether such appointment would constitute impermissible collection of evidence on possession.

Legislation cited

Code of Civil Procedure, 1908 — s. Order XXVI Rule 9

Subjects

boundary dispute
court commissioner
civil procedure
evidence collection
writ petition
declaration of ownership
perpetual injunction

Judgment

2026:BHC-AUG:4764
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(1)

IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 10591 OF 2025
Machhindra Gangaram Gadekar
VERSUS
The State Of Maharashtra And Others
...
Advocate for the Petitioner : Mr. Ashraf Patel h/f Mr. Avhad Abhijeet
Padmakar
AGP for Respondent/State : Mr. S.D. Ghayal
...
CORAM : S. G. CHAPALGAONKAR, J.
DATED : FEBRUARY 02, 2026

PER COURT :-

1. Heard.

2. Present writ petition takes exception to order dated

18.02.2025 passed below Exhibit-62 in R.C.S. No.429 of 2018 by Civil

Judge Senior Division, Vaijapur, whereby petitioner’s application for

appointment of Court Commissioner has been rejected.

3. The petitioner is a plaintiff in R.C.S. No.429 of 2018

pending before Civil Judge Senior Division, Vaijapur. The plaintiff has

filed suit seeking decree of declaration of ownership and perpetual

injunction in respect of suit property which is specified in para 1 of

plaint. According to plaintiff, he is owner of 3 Acre 20 Gunthas of

land out of Gat No.8 situated at Malisagaj, Taluka Vaijapur, District

Aurangabad. The plaintiff has specified boundaries of land owned

and possessed by him.

4. The respondents/defendants filed written statement and

refuted plaintiff’s claim. They have specifically disputed western side
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boundary as given in plaint. In this backdrop, when plaintiff recorded

his own evidence, he filed an application under Order XXVI Rule 9 of

Civil Procedure Code seeking appointment of Commissioner to find

out whether area stipulated in disputed sale deed no.4886 of 2018

does exists within boundaries mentioned therein and who is actual

land owner to western side of suit property and prepare authentic

measurement map showing boundaries of lands possessed by plaintiff

and defendant no.1 and 2-A to 2-E. The Trial Court rejected

application vide impugned order dated 21.06.2025 holding that

appointment of Commissioner would amount to collection of evidence

which is not permitted under law.

5. Learned advocate appearing for petitioner submits that

defendants have raised dispute as regards to western side boundary,

therefore, appointment of Commissioner is imperative to resolve

dispute as to boundaries. Apparently, suit is instituted for relief of

declaration of ownership and perpetual injunction. The plaintiff has

specifically asserted his possession of suit land as per boundaries

specified in plaint para 1. In this background, it is for plaintiff to

establish ownership and possession over suit property. Although

defendants have disputed western side boundary of plaintiff’s land,

that itself would not constitute dispute as to demarcation of

boundaries between parties. The plaintiff has not sought relief like

fixation of boundaries.
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6. In this background, the Trial Court is justified in holding

that no case is made out to exercise discretion under Order XXVI Rule

9 of Civil Procedure Code. The Trial Court has rightly appreciated the

law laid down by this Court in various judgments referred in order to

conclude that in facts of case, the appointment of Commissioner

would amount to collection of evidence in respect of plaintiffs

possession which is not permitted in exercise of jurisdiction under

Order XXVI Rule 9 of Civil Procedure Code.

7. In result, no case is made out to exercise writ jurisdiction.

Hence, writ petition stands rejected.

(S.G. CHAPALGAONKAR, J.)

Mujaheed//

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