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Bombay High CourtWP/38/2018disposed offdismissed for default

Ushabai Tukaram Rakh v. Shridhar Devrao Shelke And Others

2019-01-04Hon'Ble Shri Justice S V Gangapurwala2 pages

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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

BENCH AT AURANGABAD WRIT PETITION NO. 38 OF 2018 Ushabai Tukaram Rakh .. Petitioner

Versus

Shridhar Devrao Shelke and others .. Respondents Shri Vitthal M. Chate, Advocate for the Petitioner. CORAM : S. V. GANGAPURWALA, J.

DATE : 04TH JANUARY, 2019.

FINAL ORDER :

.

The petitioner is original plaintiff. The petitioner has filed suit for simplicitor injunction. Application of the petitioner for temporary injunction is allowed. The petitioner moved an application for appointment of Court Commissioner to measure the suit property. The application is rejected. The petitioner filed an appeal before the District Court. The District Court dismissed the appeal. Aggrieved thereby present petition. 2.

Mr. Chate, the learned counsel for the petitioner fairly concedes that the appeal filed by the petitioner before the District Court against the order of rejection of application for appointment of Court Commissioner was not maintainable. The learned counsel further submits that, the Trial Court did not

2 wp 38.18 consider the requirement of measurement. If the measurement is carried out by an expert, it would assist the Court for arriving at just conclusion. According to the learned counsel reasons are given in the application for measurement. The learned counsel submits that the application is not for collecting evidence, but to bring on record the existing situation.

3.

The suit is for simplicitor injunction and not for possession or removal of encroachment, nor there is any dispute with regard to boundaries. The petitioner has already got benefit of order of temporary injunction. The application given by the petitioner (Exhibit 19 ) also does not disclose any reason, which would inspire confidence in the Court to appoint Court Commissioner. 4.

The Trial Court has not committed any error while rejecting the application. In the light of that, the writ petition is disposed of. No costs.

[S. V. GANGAPURWALA, J.] bsb/Jan. 19