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2011 DIGILAW 1139 (CAL)

Srimattya Mira Mitra v. Divisional Forest Officer

2011-08-19

PRASENJIT MANDAL

body2011
Judgment :- Prasenjit Mandal, J. This application is at the instance of the plaintiffs and is directed against the Order No.44 dated June 13, 2005 passed by the learned Additional District Judge, Fast Track 4th Court, Medinipur in Title Appeal No.214 of 2001 thereby allowing an application under Order 39 Rule 7 of the C.P.C. filed by the opposite party no.1. The fact in short is that one Phani Bhusan Mitra was the original owner of the suit property along with other portion of the plot in suit and after his death, his three sons inherited the said suit property. There were some trees in some portion of the plot in suit and the rest portion was vacant. In 1948, Phani Bhusan Mitra sold 27 decimals of land out of the plot in suit to one Monoranjan Ghosh by a registered deed. 9 decimals of land out of the plot in suit were acquired by the Bengal Nagpur Railway and 5.83 acres of land out of the plot in suit were acquired for a public road. The petitioners and the proforma defendants are the heirs and successors of the said Phani Bhusan Mitra and they retained 23.45 acres of land in their possession by submission of ‘B’ Form and out of the said retained land, 2.34 acres of land and 4.58 acres of land were acquired for National Highway No.6. But the State treated the suit property as vested and as such, the heirs of Phani Bhusan Mitra filed a title suit being Title Suit No.77 of 1979 against the opposite party nos.2 and 3 praying, inter alia, for declaration of their right, title and interest in suit property, permanent injunction and other reliefs. The opposite party nos.2 and 3 contested the said suit by filing a written statement denying the material allegations raised in the plaint. The learned Trial Judge decreed the suit on April 11, 1985 in favour of the predecessors-in-interest of the petitioners and proforma opposite parties and the defendant nos.2 and 3 were restrained from disturbing the peaceful possession of the plaintiffs in the suit property. The State of West Bengal did not prefer any appeal. Subsequently, a review application under Order 47 Rule 1 of the C.P.C. being Misc. The State of West Bengal did not prefer any appeal. Subsequently, a review application under Order 47 Rule 1 of the C.P.C. being Misc. Case No.9 of 1985 was filed by the opposite party nos.2 and 3 against the said judgment and the said review application was rejected on March 5, 1992. Thereafter, a revisional application being the Civil Revision No.104 of 1992 was filed by the opposite party no.1 before the learned District Judge, Medinipur and the same was dismissed for default on January 12, 1995. The restoration application was rejected subsequently. Thereafter, the opposite party no.1 moved this Hon’ble Court and the Hon’ble Court directed that the Civil Revision No.104 of 1992 be restored. Subsequently, the said C.O. No.104 of 1992 was dismissed on contest by the learned Additional District Judge, 1st Court, Medinipur. After lapse of 16 years, the opposite party no.1 filed a title appeal being Title Appeal No.214 of 2001 against the judgment dated April 11, 1985 along with the application for condonation of delay. The learned District Judge allowed the application for condonation of delay upon payment of cost and the appeal is pending. In the said appeal, the opposite party no.1 filed an application under Order 39 Rule 7 of the C.P.C. on May 13, 2005 and the said application was allowed. Being aggrieved by the said impugned order, this revisional application has been preferred by the plaintiffs. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, it is found that the facts as narrated above are undisputed. Now, therefore, the question is whether the learned Trial Judge was justified in allowing the application for local inspection after a lapse of 20 years from the date of the judgment. The opposite party no.1 prayed for inspection on the following points:- i) The Commissioner shall inspect the suit property and prepare a sketch map, ii) Whether there are trees and the office of the Forest Ranger on plot in suit, iii) Any matter to which the attention of the learned Commissioner is drawn by either of the parties, and iv) Local features. As noted above, the said appeal was filed after 16 years from the date of passing of the order in 1985 and the First Appellate Court is to decide whether the judgment and decree passed by the learned Trial Judge should be sustained or not on the basis of the evidence adduced by the parties in support of their respective contentions. It may be noted herein that the State of West Bengal did not prefer any appeal but the opposite party no.1, that is, the Forest Officer has filed the appeal. The object of inspection is to note the peculiar feature which could be available by spot inspection and so, after lapse of 20 years from the date of passing of the judgment, if the suit property is inspected, the features that were available at the time of hearing of the suit might not be available at present. Moreover, from the above noted facts, it is clear that the plaintiffs filed the suit for declaration of their title and permanent inspection on the contentions already noted. They have clearly stated that after vesting of certain portions of the plot in suit by acquisition by different authorities, they retained certain portion of the land which is the suit property by submission of ‘B’ Form. Even, thereafter, the acquisition was made from the plot in suit under retention by the plaintiffs for the purpose of construction of the NH 6. The parties have adduced evidence according to their respective contentions. Therefore, if the application for local inspection is allowed at this stage on the points already noted, it will be nothing but to collection of evidence at the appellate stage of the suit. So, from the materials on record, I find that the petitioners have rightly contended that the filing of the application for local inspection is nothing but to collect evidence, which is not permissible at all. Further, when acquisitions of the different portions of the plot in suit were made in different phases for different purposes, as noted earlier, unless, a local investigation is made, it will be difficult to determine now what is the suit property at present and the extent of the land by mentioning the boundaries, etc. A Commissioner is not empowered to do so on mere inspection on the points as noted earlier. Mr. Gautam Kr. A Commissioner is not empowered to do so on mere inspection on the points as noted earlier. Mr. Gautam Kr. Das, learned advocate appearing for the petitioner has referred to the decision of The Institution of Engineers (India) & anr. v. Bishnu Pada Bag & anr. reported in AIR 1978 Calcutta 296 and thus, he submits that no commission can be issued for the purpose of collection evidence in suit and this decision is relied on the decisions AIR 1961 SC 218 and AIR 1958 Rajasthan 218. He has also referred to the decision of Padam Sen & anr. v. The State of Uttar Pradesh reported in AIR 1961 SC 218 which has been taken into consideration by above noted decision. On the other hand, Mr. Pradip Kr. Roy appearing on behalf of the opposite party has referred to the decision of Nagar Palika Jind v. Jagat Singh reported in 1995 WBLR (SC) 201 and thus, he submits that suit for declaration and permanent injunction without recovery of possession is not maintainable as per provision of Section 34 of the Specific Relief Act. So, in order to ascertain whether there is any office of the opposite party no.1 on the suit property, inspection is required. As noted earlier, the reliefs sought for by the plaintiffs are for declaration and permanent injunction. No recovery of possession has been sought for. It is to be seen whether any specific contention was raised by the defendants in the written statement in view of the provisions of Section 34 of the Specific Relief Act. This point shall be considered at the time of hearing the appeal and it appears there is no scope of consideration within the domain of Article 227 of the Constitution whether for the purpose of provisions of Section 34 of the Specific Relief Act, an inspection should be allowed or not. That question merely depends as per pleadings of the parties to be tested at the time of hearing of the appeal. So, the provisions of Section 34 of the Specific Relief Act need not be considered at this stage. In that view of the matter, I am of the opinion that the learned First Appellate Court has committed errors of law in allowing the application for local inspection. The impugned order cannot, therefore, be sustained. The application is, therefore, allowed. The impugned order is hereby set aside. In that view of the matter, I am of the opinion that the learned First Appellate Court has committed errors of law in allowing the application for local inspection. The impugned order cannot, therefore, be sustained. The application is, therefore, allowed. The impugned order is hereby set aside. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.