CHANDRASENA PANDHARINATH GUNALE THROUGH LRS ASHISH PANDHARINATH GUNALE AND ANOTHERversusLATUR DISTRICT CENTRAL CO OPERATIVE BANK LTD THROUGH ITS MANAGING DIRECTOR

2026:BHC-AUG:13402
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                         IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                    BENCH AT AURANGABAD

                                 55 WRIT PETITION NO. 301 OF 2020

                 CHANDRASENA PANDHARINATH GUNALE THROUGH LRS ASHISH
                              PANDHARINATH GUNALE AND ANOTHER
                                                VERSUS
                LATUR DISTRICT CENTRAL CO OPERATIVE BANK LTD THROUGH ITS
                                         MANAGING DIRECTOR
                                                    ...
                Mr. Jayant R. Patil, Advocate for the Petitioners.
                Mr. Ashwin V. Hon, Advocate for Respondent.
                                                    ...

                                         CORAM :         SIDDHESHWAR S. THOMBRE, J.
                                         DATE    :       24rd MARCH 2026
                P.C.:-

                1.        Heard learned Advocates for the respective parties.

                2.        By the present petition, the Petitioners are aggrieved by the

                order dated 16.10.2019 passed below Exhibit-79 by the learned 2nd

                Joint Civil Judge, Junior Division, Ahmedpur, District Latur in R.C.S.

                No.649 of 2015, whereby the application filed by the Respondent

                under Order XXVI Rule 9 of the Code of Civil Procedure, 1908, came to

                be allowed.

                3.        Mr. Jayant R. Patil, learned Advocate for the Petitioners

                submits that the Respondent–Bank has instituted R.C.S. No.649 of

                2015 for declaration of ownership, possession, and mandatory

                injunction in respect of property bearing M.C. No.1, 2 and 3 situated at

                Ahmedpur, District Latur. Petitioner Nos.1 and 2 filed their written

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          statements and Petitioner No.3 adopted the same. The Respondent

          thereafter filed an application below Exhibit-79 seeking appointment of

          a Court Commissioner for local investigation of the suit property. The

          Petitioners opposed the said application on the ground that it amounts

          to collection of evidence. However, the learned Trial Court allowed the

          application. Hence, it is submitted that the impugned order deserves to

          be set aside.

          4.        Per contra, Mr. Ashwin V. Hon, learned Advocate for the

          Respondent supports the impugned order by contending that the

          appointment of a Court Commissioner is necessary to ascertain

          whether there is actual encroachment over the suit property.

          5.        Having heard the learned Advocates for the respective parties

          and upon perusal of the record, it appears that the Respondent has

          filed the suit for declaration of ownership, recovery of possession, and

          mandatory injunction. It is the contention of the Petitioners that both

          parties have already led oral as well as documentary evidence and the

          matter was fixed for final arguments. Despite the same, the Respondent

          filed the present application, which, according to the Petitioners, ought

          not to have been allowed at such a belated stage.

          6.        It is not in dispute that the evidence of both sides has been

          completed and the matter was posted for arguments.

          7.        A perusal of the application filed by the Respondent indicates
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          an allegation that on 26.09.2015, the Original Defendants/Petitioners

          encroached upon the suit property by demolishing gardens and plants.

          It is also stated that the Defendants were put in possession of their

          property on 10.08.2015.

          8.        The Trial Court made observation that the suit pertains to

          encroachment and recovery of the encroached portion appears to be

          contrary to the record. The suit is essentially for declaration and

          recovery of possession. Moreover, in the earlier proceedings being

          R.C.S. No.41 of 2013 (old No.125/2008), a Court Commissioner i.e.,

          T.I.L.R., Ahmedpur, had already been appointed and a map was

          prepared. The said map, produced on record, placed at page No.39

          clearly reflects the measurements of the respective properties, namely,

          155 × 56 feet for the Petitioners and 95 × 70.6 feet for the

          Respondent.

                    In view of the earlier adjudication and the material already

          available on record, the necessity of appointing a fresh Court

          Commissioner at the stage of final arguments does not arise.

          9.        In the above circumstances, this Court is of the opinion that

          the Petitioners have made out a case for interference.

          10.       Hence, the present writ petition is allowed.

          11.       The order dated 16.10.2019 passed below Exhibit-79 by the


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          learned 2nd Joint Civil Judge, Junior Division, Ahmedpur, District Latur

          in R.C.S. No.649 of 2015 is quashed and set aside.

          12.       Considering that the suit is of the year 2015, the Trial Court

          is directed to decide the same expeditiously, preferably within a period

          of one year from today.

                                            (SIDDHESHWAR S. THOMBRE, J.)




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