Bombay High Court
SHRI. ASHOK RAMCHANDRA PALEKAR AND ORS.versusSHRI. RAGHUNATH KESHAV PALEKAR AND ORS.
- Disposal
- Dismissed
- Bench
- ANIL LAXMAN PANSARE
Holding
The trial court correctly placed the burden of proving the claimed expenses on the plaintiffs and held that the defendants could not obtain a Court Commissioner, leading to dismissal of the writ petition.
Summary
The petitioners (defendants) challenged a trial‑court order that denied their request for a Court Commissioner under Order 26 Rule 9 of the Code of Civil Procedure to inspect agricultural land in a partition suit. The original plaintiffs had claimed a sum of Rs 5,50,000 as expenses incurred in developing the land and sought a decree for payment. The petitioners argued that there was a dispute over these expenses and that a commissioner should be appointed to verify the claim. The trial court held that the burden of proving the expenses rested on the plaintiffs and that the defendants could not seek a commissioner merely to collect evidence. The High Court affirmed this reasoning, finding no merit in the writ petition and dismissing it, which also disposed of the pending interim application.
Issues considered
- Can the defendants seek appointment of a Court Commissioner under Order 26 Rule 9 to inspect the property when the plaintiffs claim expenses?
- Who bears the burden of proving expenses incurred in developing agricultural land in a partition suit?
- Is the writ petition challenging the trial‑court’s order maintainable?
Legislation cited
- Code of Civil Procedure, 1908 — s. Order 26 Rule 9
Subjects
- partition suit
- court commissioner
- burden of proof
- agricultural land
- expenses
- civil procedure
- Order 26 Rule 9
Judgment
29-wp-1585-2016.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIRCUIT BENCH AT KOLHAPUR
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.1585 OF 2016
WITH
INTERIM APPLICATION NO. 534 OF 2026
Ashok Ramchandra Palekar & Ors. …..Petitioners
Vs.
Raghunath Keshav Palekar & Ors. …..Respondents
Mr. P. D. Dalvi, i/b. Mr. Girish R. Agrawal, for the Petitioners.
Mr. Dilip Bodake with Mr. Sharad T. Bhosale, for the Respondent
Nos.1 to 4.
CORAM : ANIL L. PANSARE, J.
DATED : 23rd APRIL 2026
P.C.:-
1. Heard.
2. The challenge is to order dated 27th October 2015 passed below
Exhibit 32 in Special Civil Suit No.1 of 2013 by Civil Judge, Senior
Division, Karad. The Respondent Nos.1 to 4/the original plaintiffs
have filed a suit for partition. By way of an additional prayer, the
original plaintiffs have also sought a decree of payment of
Rs.5,50,000/-, which according to the original plaintiffs, is the
expenses made for development of the agricultural land (subject
matter of the suit).
Gaikwad RD 1/3
29-wp-1585-2016.doc
3. The Petitioners/original defendant Nos.1 to 3 approached the
trial Court seeking appointment of Court Commissioner under Order
26 Rule 9 of the Code of Civil Procedure. The Petitioners had as such
denied the expenses allegedly put in by the Respondent Nos.1 to 4 in
developing the agricultural land, they have, however, averred in the
application that the parties to the suit and other joint owners are
taking water from the common well for Survey No.404 and 374.
There is further averment in respect of taking water from borewell by
the parties to cultivate the agricultural land bearing Survey Nos.404
and 374.
4. In context with the aforesaid pleadings, when a query was
made with the counsel for the Petitioners as to why the Petitioners
averred and referred to “other joint owners”, the counsel appeared
clueless. He submits that the position might be that there are other
joint owners or the reference may be for other defendants. This
argument is obviously not sustainable. Once the Petitioners referred
to “plaintiffs and defendants as joint owners”, the other defendants
will stand included. The counsel for Petitioners, however, submits
that this part of averment is not relevant to decide the appointment
of Court Commissioner.
Gaikwad RD 2/3
29-wp-1585-2016.doc
5. Thus, what is relevant is that there is dispute about Respondent
Nos.1 to 4/original plaintiffs incurring expenses to the tune of
Rs.5,50,000/- in developing the agricultural land under question.
6. In context with such a plea, the trial Court has held that the
burden is upon the Respondent Nos.1 to 4/the original plaintiffs to
justify the expenses and, therefore, the Petitioners/original defendant
Nos.1 to 3 cannot seek appointment of Court Commissioner for
inspection of property.
7. This finding appears to be in tune with the provisions of law.
Since, it is a case of original plaintiffs that they have incurred certain
expenses in developing the agricultural land, the burden will be upon
the plaintiffs. The defendants cannot take assistance of Court
Commissioner on this point, which otherwise, would amount to
collecting evidence.
8. That being so, there is no substance in the petition. The
Petition is accordingly dismissed.
9. In view of dismissal of Writ Petition, the Interim Application
pending therein shall also stand disposed of.
(ANIL L. PANSARE, J.)
Digitally
signed by
RAJU
RAJU DATTATRAYA
DATTATRAYA GAIKWAD
GAIKWAD Date:
2026.04.24
19:48:18
+0530
Gaikwad RD 3/3
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