BHAUSAHEB YASHWANT PHATANGARE AND ANOTHERversusASHOK RAM PHATANGARE AND OTHERS

2026:BHC-AUG:45806

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                                                                        903-wp-5715-2024

                          IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                     BENCH AT AURANGABAD

                                        WRIT PETITION NO. 5715 OF 2024

                             Bhausaheb Yashwant Phatangare And Another
                                                VERSUS
                                  Ashok Ram Phatangare And Others
                                                   ...
                     Mr. D. M. Mane h/f Mr. P. A. Bharat, Advocate for the
                     Petitioners
                     Mr. Y. V. Kakde, Advocate for Respondent nos.1 to 4
                                                  …..
                                         CORAM : AJIT B. KADETHANKAR, J.
                                              DATED : 29TH SEPTEMBER, 2026

                     P.C. :-

                     .         Heard.

                     2.        The facts of the present case are of very peculiar nature.

                     The respondents/plaintiffs instituted Regular Civil Suit No.181

                     of 2020 in the Court of learned Civil Judge Junior Division,

                     Shevgaon seeking possession of 30R land encroached by the

                     present petitioners/defendants from the land of the plaintiffs.

                     The suit was presented on 31.08.2020, coupled with an

                     application under Order XXVI Rule 9 of the Civil Procedure

                     Code seeking appointment of Court Commissioner for

                     measurement of land and for submission of a report before the

                     Court.
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3.    Subsequently, the defendants entered their appearance

in the suit, filed their written statement and also extended a

counter claim. The issues are yet to be framed. In the

meantime, the plaintiffs pressed their application at Exhibit-08

filed under Order XXVI Rule 9 of the CPC. The defendants

opposed the application contending that it was a premature

one. However, the Trial Court vide order dated 15.03.2024

allowed plaintiffs’ application. The Trial Court appointed the

Taluka Inspector Land Records, Shevgaon as a Court

Commissioner     to   conduct   joint    as   well   as   separate

measurement     of    Gut   No.194      and   743    situated   at

Bhatkudgaon, Tahsil Sevgaon, District Ahmednagar, and to

submit an unambiguous measurement report alongwith a map

showing encroachment. The appointment of the Court

Commissioner and the object of the appointment is assailed by

the defendants in this Writ Petition.

4.    Mr. D. M. Mane h/f Mr. P. A. Bharat, learned Advocate

for the petitioners submits that apparently, the application is

premature one. He submits that a Court Commissioner cannot

be appointed for the purpose of collecting evidence. He

further submits that the Trial Court directed the Court

Commissioner to produce a measurement map showing
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encroachment, which infact amounts to collection of evidence.

With this, Mr. Mane prays to allow the Writ Petition.

5.    Mr.    Y.      V.   Kakde,   learned   Advocate   for   the

plaintiffs/respondents would advocate the impugned order.

He would submit that is is a trite law that whenever there is

dispute as regards to the boundaries, the appropriate way is to

appoint a Court Commissioner under Order XXVI Rule 9 of the

Civil Procedure Code. He further submits that the Trial Court

is absolutely justified in appointing the Court Commissioner.

He would object that the Court Commissioner is appointed for

collection of evidence. With this, Mr. Kakde prays to dismiss

the Writ Petition.

6.    I have heard both sides extensively. Apparently, the

application for appointment of a Commissioner was filed

alongwith Exhibit-1 i.e. alongwith the suit itself. As on today,

although the defendants have filed their written statement

denying the suit and also have filed counter claim, the issues

are yet to be framed. In view thereof, I am of the considered

view that the application is absolutely a premature one. There

is no reason to disagree with the legal preposition that in a

case involving a boundary dispute, the efficacious remedy
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would be to appoint a TILR as Court Commissioner. However,

such application has to be filed at an appropriate stage.

7.    This Court is surprised to note that although only the

execution and operation of the order appointing Court

Commissioner order was stayed, the Trial Court has not

proceeded with the suit.

8.    Mr. Kakde, learned Advocate vehemently submitted that

this Court has taken a view that even before starting of the

evidence, such application can be filed. However, appointment

of Court Commissioner is such a thing to which the Court has

to give consideration, based on the facts of each case. Suffice

to note, object of appointment of Court Commissioner can

never be to demonstrate an encroachment portion. This is so

because it is the job of the Civil Court to define and to identify

the encroachment based on the evidence placed on record by

the party alleging encroachment. The Court Commissioner can

only measure lands, prepare a map and to place it before the

Court. In view thereof, I find that the impugned order cannot

be sustained and the petition must succeed. Hence, I pass

following order:
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                                 ORDER

         a.      Writ Petition stands allowed.

         b.      Order dated 15.03.2024 passed below
         Exhibit-08 in Regular Civil Suit No.181 of 2020
         by learned 2nd Joint Civil Judge Junior Division,
         Shevgaon is quashed and set aside.

         c.      The plaintiffs are at liberty to file a fresh
         application     seeking    appointment      of   Court
         Commissioner at an appropriate stage.

         d.      If such application is filed by the plaintiffs,
         the Trial Court shall decide the same on its own
         merits without being influenced by anything
         including its earlier order, but within the
         parameters of law.

         e.      All contentions kept open.

         f.      The Trial Court shall proceed with the suit
         and would conclude the same within a period of
         twelve (12) months from today.

         g.      Writ Petition stands disposed of.



                                        ( AJIT B. KADETHANKAR, J. )

Rushikesh/2026