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Bombay High Court

TATYARAO KASHINATH BANSODEversusKAILASH KISAN BANSODE AND OTHERS

Disposal
DISPOSED OFF

Holding

The petitioner may file a fresh application for appointment of a Court Commissioner after leading evidence, and the trial court must consider it afresh.

Summary

The petitioner, Tatyarao Kashinath Bansode, filed a writ petition challenging the trial court’s order rejecting his application for appointment of a Court Commissioner in a civil suit for possession of 13 R of land. The trial court had held that the onus of proving ownership lay on the plaintiff and that appointing a commissioner at that stage would amount to impermissible evidence collection under Order XXVI Rule 9 of the CPC. The High Court observed that the issues in the suit were already framed and the plaintiff must first lead evidence to establish ownership before any measurement can be ordered. Accordingly, the Court granted the petitioner liberty to file a fresh application for a Court Commissioner after he has led his evidence, directing the trial court to consider it afresh. The writ petition was therefore disposed.

Issues considered

  • Whether the trial court erred in rejecting the application for appointment of a Court Commissioner under Order XXVI Rule 9 of the CPC.
  • Whether the petitioner is entitled to liberty to file a fresh application for a Court Commissioner after leading evidence.
  • Whether the writ petition is maintainable to challenge the trial court’s order.

Legislation cited

Subjects

  • court commissioner
  • possession suit
  • evidence
  • civil procedure
  • writ petition
  • encroachment

Judgment

2026:BHC-AUG:24555
                                                  -1-
                                                                          33-WP-6140-2026

                        IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                   BENCH AT AURANGABAD

                                 WRIT PETITION NO.6140 OF 2026

                                TATYARAO KASHINATH BANSODE
                                            VERSUS
                              KAILASH KISAN BANSODE AND OTHERS
                                                 ...…
              Mr. Vikrant Palshikar, Advocate for Petitioner.
                                                 ...…

                                             CORAM : S. G. CHAPALGAONKAR, J.
                                              DATED : 22nd JUNE, 2026.
              PER COURT :

              1.          The petitioner takes exception to order dated 12.02.2026

              passed below Exhibit-23 in Regular Civil Suit No.68 of 2015 by learned

              Civil Judge Junior Division, Sillod, whereby petitioner’s application for

              appointment of Court Commissioner has been rejected.


              2.          The petitioner instituted a suit seeking decree of possession

              of encroached portion admeasuring 13 R out of Gut nos. 70 and 71 as

              shown in sketch map appended to plaint. Respondents/defendants

              denied the claim of petitioner/plaintiff. In this backdrop, petitioner filed

              an application below Exhibit 23 seeking appointment of Court

              Commissioner for joint measurement and fixation of boundaries. The

              Trial Court declined to consider petitioner’s application on the ground

              that onus of proof lies on plaintiff to show that he is absolute owner and

              is entitled for possession thereof. It is further observed that allowing
                                    -2-
                                                           33-WP-6140-2026

application of petitioner at this stage would constitute collection of

evidence, which is not permissible under Order XXVI Rule 9 of Code of

Civil Procedure.



3.           This Court finds that issues are already framed in suit and

plaintiff/petitioner will have to proceed to lead with evidence. He will

have to prima facie established his ownership as regards to encroached

land as described in plaint. Thereafter, issue would arise as to whether

his land is encroached by defendant and decree for possession needs to

be passed.


4.           In this backdrop, this Court finds that present Writ Petition

can be disposed of by granting liberty in favor of petitioner to move fresh

application for appointment of a Court Commissioner after leading his

evidence. At that stage, if such an application is filed, Trial Court will

have to consider it afresh without influenced by observations made in

impugned order.


5.           The Writ Petition stands disposed of accordingly.


                                           (S. G. CHAPALGAONKAR)
                                                    JUDGE


Tandale


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