DINANATH SUPDU JOSHI Vs. SHRIRAM

JUDGEMENT

(1.) Rule. Rule is made returnable forthwith. With the consent of parties taken up for final hearing.

(2.) By this petition, petitioner challenges order dtd. 12/8/2022 passed by the 02nd Joint Civil Judge Senior Division, Nandurbar allowing application of the defendant No. 1/ respondent No. 1 for appointment of Court Commissioner for measurement of plot Nos. 23 and 24 at Survey No. 284, Shanti Nagar, Nandurbar. Application was moved by the defendant No. 1 in the suit filed by the plaintiff/petitioner. The suit is filed by plaintiff seeking injunction against the defendant No. 1 from encroaching upon common road in the colony and for removal of unauthorized construction. Municipal Council is also arrayed as defendant No. 2 to the suit. The defendant No. 1 has filed counter claim alleging encroachment by plaintiff and a prayer is made for measurement of Plot Nos. 23 and 24 and for removal of encroachment allegedly committed by plaintiff. An additional prayer is made for construction of road by defendant No. 2 between plot Nos. 23 and 24. Plaintiff has filed application for temporary injunction to restrain defendant No. 1 from encroaching upon the common road, which is pending. Defendant No. 1 has not filed application in his counter claim seeking any temporary injunction against the plaintiff.

(3.) During the pendency of application for temporary injunction filed by plaintiff, defendant No. 1 filed application dtd. 3/3/2021 for appointment of Court Commissioner for measurement of plot Nos. 23 and 24 alleging that plaintiff has committed encroachment upon the road and that by ignoring encroachment committed by the plaintiff, the Municipal Council has attempted to construct a road in plot No. 24 belonging to the defendant No. 1. Application was resisted by the plaintiff. By order dtd. 12/8/2022, the application has been allowed directing the Deputy Superintendent of Land Records, Nandurbar to measure Plot Nos. 23 and 24 and to fix boundary marks and to verify whether there is any encroachment over 30 feet road. The Deputy Superintendent of Land Records has also been granted liberty to carry out measurement of entire Survey No. 284 to determine exact encroachment in respect of Plot Nos. 23 and 24. Plaintiff has challenged the order dtd. 12/8/2022 in the present petition.