Bombay High Court

SAMPAT BAPU WALHEKARversusBHAIRU KSAHADU MOHOL

Decided: 1 September 2026
Disposal: Rejected

Holding

Appointment of a Court Commissioner is not necessary in a possession suit without a boundary dispute, and the trial court's order rejecting the application stands.

Summary

The petitioner filed a writ petition challenging the trial court's order rejecting an application for the appointment of a Court Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure to record the factual position of the suit property. The underlying suit seeks recovery of possession of a property (suit Gala) where the defendant is a permissive user refusing to vacate. The High Court examined whether a Court Commissioner is required in a possession suit that does not involve a boundary dispute. It held that such appointment is unnecessary as the suit does not pertain to boundary issues. Consequently, the trial court's rejection of the application was upheld and the writ petition was dismissed.

Issues considered

Whether appointment of a Court Commissioner under Order XXVI Rule 9 CPC is required in a possession suit that does not involve a boundary dispute

Legislation cited

Code of Civil Procedure, 1908 — s. Order XXVI Rule 9

Subjects

Court Commissioner
CPC
possession suit
boundary dispute
writ petition
Civil appellate jurisdiction

Judgment

Renuka                                             19-WP-8006-2017.docx


           IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                    CIVIL APPELLATE JURISDICTION
                   WRIT PETITION NO. 8006 OF 2017
Sampat Bapu Walhekar                                ...Petitioner
                  V/s.

Bhairu Ksahadu Mohol                               ...Respondent
                              ________________
Ms. Manjiri S. Parasnis with Ms. Samiksha Lokhande for Petitioner.
Mr. Hemant Ghadigaonkar for Respondent.


                              ________________
                                       CORAM: SANDEEP V. MARNE, J.
                                        DATED: 1 SEPTEMBER 2026.


P.C.:


1)          The Petition challenges order dated 17 February 2016
passed by the Joint Civil Judge Senior Division, Pune rejecting
Application at Exh-15 which was filed seeking appointment of Court
Commissioner under Order XXVI Rule 9 of the Code of Civil Procedure,
1908 (Code) to bring on record factual position of the suit property.


2)          I have heard Ms. Parasnis, the learned counsel appearing for
the Petitioner and Mr. Ghadigaonkar the learned counsel appearing for
the Respondent.




                                  Page No.1 of 2
                               1 SEPTEMBER 2026
                          Renuka                                                19-WP-8006-2017.docx


                          3)          The suit is filed for recovery of possession of suit Gala.
                          According to the Plaintiff, Defendant is a permissive user in respect of
                          suit Gala who has refused to vacate the same. In such a suit,
                          appointment of Court Commissioner is not necessary since the suit does
                          not involve a boundary dispute. In my view therefore, the Trial Court has
                          rightly rejected the Application. No interference is warranted in the
                          impugned order.


                          4)          Writ Petition is rejected.


                                                                             [SANDEEP V. MARNE, J.]




Signed by: Renuka S Thakur
                                                            Page No.2 of 2
Designation: PA To Honourable Judge                      1 SEPTEMBER 2026
Date: 02/09/2026 10:57:03

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