Bombay High Court
HEMANT GOKULDAS MEHERversusRASHMI MAHENDRA KUMAR PATWAN
- Disposal
- DISPOSED OFF
- Bench
- S G CHAPALGAONKAR
Holding
The High Court held that the trial court did not err and the commissioner’s report complied with the directions, so the writ petition was dismissed.
Summary
The petitioner, Hemant G. Meher, filed a civil suit seeking declaration of ownership and a perpetual injunction over 40R of land in Survey No. 200. He obtained an order appointing a Court Commissioner to measure the land, whose report was later accepted by the trial court. During trial, the petitioner claimed the commissioner’s testimony indicated the respondent had obstructed boundary fixing, and he applied for re‑measurement and clarification of a 16R encroachment. The trial court rejected this application, holding that the suit was for declaration and injunction, not for boundary fixation, and that the commissioner’s report complied with the earlier directions. On writ petition, the High Court examined the commissioner’s map, found it consistent with the record, and concluded there was no jurisdictional error in the trial court’s order. Accordingly, the writ petition was dismissed without costs.
Issues considered
- Whether the trial court erred in rejecting the petitioner’s application for re‑measurement and fixing of boundaries under Order XXVI Rule 10 of the CPC.
- Whether the Court Commissioner’s report complied with the directions and thus precludes further inquiry.
- Whether the writ petition is maintainable to set aside the trial court’s order.
Legislation cited
- Code of Civil Procedure, 1908 — s. Order XXVI Rule 10
Subjects
- declaration of ownership
- perpetual injunction
- court commissioner
- boundary fixation
- re‑measurement
- Civil Procedure Code
- writ petition
- jurisdiction
Judgment
2026:BHC-AUG:615
1 wp 14259.25.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO. 14259 OF 2025
Hemant Gokuldas Meher,
age 42 years, Occ. Agriculturist,
R/o Kharad, Tq. Ashti,
District Beed. Petitioner.
VERSUS
Rashmi Mahendra Kumar Patwan,
age 34 years, Occ. Nil,
R/o Kharad, Tq. Ashti, Dist. Beed. Respondent.
...
Advocate for Petitioner : Mr. G.K. Naik Thigle
Advocate for Respondent : Mr. Anand Bhandari
…
CORAM : S. G. CHAPALGAONKAR, J.
Reserved on : January 06, 2026.
Pronounced on : January 08, 2026.
FINAL ORDER :-
1. Present writ petition takes exception to the order dated
18th September, 2025 passed below Exhibit-273 in Regular Civil
Suit no.86 of 2003 pending before the Civil Judge Junior
Division Ashti, District Beed, whereby the petitioner’s
application for re-measurement of the suit property by the
Court Commissioner and provide further particulars in the
report has been rejected.
2 wp 14259.25.odt
2. The petitioner is original plaintiff in Regular Civil Suit
no.86 of 2003 instituted before the Civil Judge Junior Division
at Ashti, District Beed seeking relief of declaration of
ownership and perpetual injection in respect of the suit
property bearing survey number 200/A to the extent of 40R as
specified in plaint in paragraph number-1. The petitioner filed
an application below Exhibit-223 seeking appointment of the
Court Commissioner. By an order dated 14 th September, 2021,
it was allowed and directions were given to the Deputy
Superintendent of Land Records at Ashti to measure the suit
property and fix the boundaries of 40R land of the plaintiff out
of survey no.200. The Court Commissioner submitted his
report in pursuance to his appointment. The parties proceeded
further and recorded evidence. During proceeding of the suit,
Court Commissioner has been examined on behalf of plaintiff
as PW-3. He was cross examined on behalf of the defendant. At
this stage, plaintiff find an application below Exhibit 273/D
contending that during evidence, witness has stated that
defendant obstructed him from fixing the boundaries.
3. In light of this admission, plaintiff sought further
directions for re-measurement and fixing of boundaries of
3 wp 14259.25.odt
plaintiff’s land from survey number 200 and specify
encroachment of the defendant on 16R portion of the plaintiff.
The Trial Court, after considering rival submissions, observed
that plaintiff has basically filed a suit for declaration and
perpetual injunction and it is only for the plaintiff to prove that
he is owner and possessor of the suit property. The Trial Court
has further observed that plaintiff has not disputed report of
the Court Commissioner till recording of his evidence and only
because certain admissions are given by the Court
Commissioner, present application is moved. The Trial Court
has further observed that present suit is not for fixation of the
boundaries and application is intended to delay the proceeding
in the suit, which cannot be permitted.
4. Mr. Thigle, learned advocate appearing for the petitioner
contends that Order XXVI Rule 10 of the Civil Procedure Code
empowers the Court to issue directions, if the Court is not
dissatisfied with proceeding of the Commissioner and may
direct further inquiry to be made. In the present case, the
Commissioner has not complied with the directions regarding
fixation of boundaries of 40R land of the petitioner and
therefore it was obligatory on the part of the Trial Court to
4 wp 14259.25.odt
issue necessary directions by allowing the application filed by
the petitioner below Exhibit 273.
5. Mr. Bhandari learned counsel appearing for the
respondent supports the impugned order.
6. Having considered the rival submissions and on perusal
of the material on record as well as measurement map of the
Commissioner, which is placed at Exhibit-260, it can be
observed that Commissioner has specifically depicted the
survey boundaries as per original record. He has also specified
boundaries of the land possessed by the respective landholders.
The area in possession of the plaintiff is specifically marked in
blue colour. The area in possession of the adjacent landholders
is shown in red colour. It is therefore evident that the Court
Commissioner has complied with the directions under order
dated 14th September 2021. No defect is discernible in the
measurement report. If during the course of evidence surveyor
has given admissions which are inconsistent with the position
shown in measurement map, the Court can appreciate veracity
of such statement as compared to the measurement map which
has been admitted in the evidence.
5 wp 14259.25.odt
7. In that view of the matter, this Court do not find
jurisdictional error in the impugned order. In the result Writ
Petition stands rejected. No costs.
( S. G. CHAPALGAONKAR, J. )
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