Shri. Subhash Bhikaji Neharkar And ORS v. Shri. Shivaji Tukaram Bhor And ORS

IRESH SIDDHARAM MASHAL Date: 2022.01.18 11:38:10 +0530 IRESH SIDDHARAM MASHAL 17.442.22 wp.doc ISM

IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CIVIL APPELLATE JURISDICTION CIVIL WRIT PETITION NO. 442 OF 2022 SHRI. SUBHASH BHIKAJI NEHARKAR ....PETITIONERS AND OTHERS V/s.

SHRI. SHIVAJI TUKARAM BHOR .....RESPONDENTS AND OTHERS Mr. Mohan B. Gawade for the Petitioners CORAM :

NITIN W. SAMBRE, J.

DATE:

JANUARY 17, 2022.

P.C.:

1] Order impugned is passed in exercise of powers under Order XXVI Rule 9 of Code of Civil Procedure, 1908 whereby prayer of the Petitioner-Plaintiff for appointment of Court Commissioner for carrying out measurement of the area came to be rejected. 2] Suit is for simplicitor injunction. Defendants have set out defence of possession over the Suit property. 1/2

17.442.22 wp.doc 3] In that eventuality, it was open for the Petitioner to get measured partly Suit land and move for consequential relief. 4] That being so, no interference in the impugned order is called for. Petition fails, stands rejected.

5] However, this will not preclude the Petitioner from carrying out independent measurement and placing the same before the Court below during the course of recording of evidence. [NITIN W. SAMBRE, J.] 2/2