Ashish Sanjay Palimkar And Others v. Gunwant Madhavrao Shete And Others

IN THE HIGH COURT OF JUDICATURE OF BOMBAY

BENCH AT AURANGABAD WRIT PETITION NO.3943 OF 2016 (Ashish Sanjay Palimkar and others Vs. Gunwant Madhavrao Shete and others) Mr.M.P.Kale, Advocate for the petitioners.

Mr.V.V.Bhavthankar, Advocate for respondent Nos.1 to 4. ( CORAM : Ravindra V.Ghuge, J.) DATE : 29/06/2017 PER COURT :

1.

This matter was heard at length on 28/06/2017 with regard to the impugned order dated 16/04/2015 by which the Trial Court has rejected application Exh.98 seeking appointment of Court Commissioner under Order 26 Rule 9 of the CPC. 2.

There is no dispute that the petitioners / original plaintiffs desire to have the suit lands as well as the land of the defendants, measured so as to notice the encroachment caused by the defendants.

3.

Learned Advocate for the respondents/defendants submits that the issues were cast on 06/11/2008, copy of which is now placed on record and marked as Exhibit 'X' for identification. He submits that issue No.2 was "Do plaintiffs prove that defendants made khs/JUNE 2017/3943

encroachment over 01 hectare 05 R land belonging to plaintiffs as contended in plaint."

4.

The plaintiffs moved an application Exhibit 108 praying for deleting issue no.2. By order dated 19/07/2016, issue No.2 is deleted, which is evidenced by the document Exhibit 'X'. 5.

Learned Advocate for the plaintiffs submits that the said order has been passed by the Trial Court as according to the plaintiffs, the defendants have admitted the encroachment.

6.

Considering the above, this petition does not survive as the plaintiffs have given up the case of encroachment against the defendants.

7.

As such, this petition is disposed of.

8.

Needless to state, the observations of this Court are with regard to application Exh.98 and the impugned order, which shall not influence the Trial Court while deciding the suit on its merits. ( Ravindra V.Ghuge, J.) khs/JUNE 2017/3943