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2011 DIGILAW 1197 (CAL)

Dipak Kumar Sarkar v. Ashok Kumar Sarkar

2011-08-30

PRASENJIT MANDAL

body2011
Judgment :- Prasenjit Mandal, J. This revisional application is directed against the order dated March 15, 2011 passed by the learned Civil Judge (Senior Division), 2nd Court, Howrah in Title Suit No.247 of 2009 thereby rejecting an application under Section 151 of the C.P.C. The plaintiff / opposite party instituted a suit for partition before the learned Civil Judge (Senior Division), 2nd Court, Howrah against the defendant. The petitioner is contesting the said suit. He filed an application on February 24, 2011 under Section 151 of the C.P.C. praying for passing an order to enable the petitioner to repair the existing dilapidated underground pipe line situated at premises No.41/24, Markardaha Road which is connected with a well lying in the portion of the premises occupied by the plaintiff. That application was rejected by the impugned order. Being aggrieved, this application has been preferred. 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, I find that Himani Kana Sarkar was the owner of the Holding No.41/24, Makardaha Road, Howrah and she executed a registered Will in respect of the said holding in favour of the plaintiff and the defendant giving them half portion of the land with building each. The well fell under the portion of the plaintiff and the defendant has the water connection from the Municipality. But he wanted to repair the water line from the well to his premises on April 14, 2010 and the plaintiff resisted. The plaintiff has contended that the defendant has water connection from the K.M.W.S.A. and that the defendant never used the well and the plaintiff has the only source of water from that well. It is the specific contention of the plaintiff that there is no pipe connection between the well and the premises of the defendant at any point of time and the defendant has wanted to take water connection from that well on the alleged date. The so called Registered Deed lays down that there existed pipe line from the well to the premises of the defendant, but the learned Trial Judge rejected the prayer observing that there is no material to show that the pipe line has been damaged or it is required to be repaired immediately. The so called Registered Deed lays down that there existed pipe line from the well to the premises of the defendant, but the learned Trial Judge rejected the prayer observing that there is no material to show that the pipe line has been damaged or it is required to be repaired immediately. In absence of any document, the learned Trial Judge rejected the prayer made under Section 151 of the C.P.C. This is wholly the discretionary power exercised by the learned Trial Judge upon hearing both the sides and on the basis of the document as available to him. In exercising a revisional jurisdiction under Article 227 of the Constitution, I am of the view that such discretionary power exercised by the learned Trial Judge on the basis of materials placed before him should not be interfered with. The impugned order cannot, therefore, be set aside in exercising the revisional jurisdiction. Accordingly, I am of the view that there is no scope of interference with the impugned order. The revisional application fails to succeed. It is, therefore, dismissed. Considering the circumstances, there will be no order as to costs.