VITTHAL KUNDLIK KHEDKARversusDINKAR KISAN KHEDKAR AND OTHERS

2026:BHC-AUG:37425



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                     IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                                BENCH AT AURANGABAD

                            WRIT PETITION NO. 8516 OF 2014

                                VITTHAL KUNDLIK KHEDKAR
                                         VERSUS
                            DINKAR KISAN KHEDKAR AND OTHERS
                                              ***
              Advocate for the Petitioner : Mr. Ajinkya A. Joshi h/f Mr. S. V. Natu
              Advocate for Respondents : Mr. S. R. Nikam h/f Mr. Y. V. Kakade

                                              ***

                               CORAM : SACHIN S. DESHMUKH, J.
                                  Date : 19th August, 2026

              ORDER :-


              1.          The petitioner has approached this Court challenging

              the judgment and order dated 21.03.2014 rendered by the learned

              Civil Judge (Junior Division), Shevgaon below Exhibit 63 in Regular

              Civil Suit No. 328 of 2011, rejecting the application presented by

              the petitioner (original defendant), seeking the appointment of a

              Court Commissioner.



              2.          The respondents no. 1 to 5 instituted Regular Civil Suit

              No. 328 of 2011 against the petitioner seeking a declaration of

              ownership and a perpetual injunction in respect of agricultural land

              situated at Gat No. 268 in village Thakur Pimpalgaon, Taluka

              Shevgaon,    District   Ahmednagar.    The   plaintiffs    asserted     the
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inherited title and active possession over the suit land, stating that

boundaries were fixed through a measurement map prepared by

the office of the Taluka Inspector of Land Records (T.I.L.R.) on

07.05.2011.    The    petitioner-defendant    resisted      the   suit   by

presenting a written statement and a counter-claim, contending

ownership     and   possession   vide   registered   sale    deed    dated

13.05.1968, while alleging errors in the revenue records. During

the pendency of the suit, the petitioner presented an application at

Exhibit 63 for the appointment of a Court Commissioner to

measure and inspect the fields.



3.          The learned counsel for the petitioner submitted that

the Trial Court committed an error while dismissing the application.

Since the petitioner had preferred a counter-claim seeking a

declaration of ownership over respective land portions, was entitled

to an independent measurement of Gat Nos. 265 and 267. The

counsel further urged that the previous T.I.L.R. report on record

failed to account. As such, prayed to allow the petition.



4.          Upon considering the submissions and perusing the

material on record, the controversy revolves around the title,

boundaries and possession of agricultural plots those have already
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been visited and measured by the Revenue Authority i.e. the

T.I.L.R.. It is for the petitioner to prove the same through oral and

documentary evidence during the course of trial.



5.            It is a well-settled principle of law that the mechanism

of appointing a Court Commissioner cannot be utilized by a

litigating party to gather evidence or to build up its case where

evidence is accessible. Therefore, the Trial Court rightly observed

that allowing such an application for recording temporary crop

conditions would amount to collecting evidence on behalf of the

defendant which is impermissible.



6.            In view of the above, the order under challenge does

not suffer from any error or illegality.



7.            Consequently, the petition sans merit and the same is

dismissed. No order as to costs.



                                         (SACHIN S. DESHMUKH, J.)



Omkar Joshi