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2011 DIGILAW 1415 (CAL)

Jharna Saha v. Subhra Ghosh

2011-11-15

PRASENJIT MANDAL

body2011
Judgment : PRASENJIT MANDAL, J. This application is directed against the Order No.38 dated December 4, 2010 passed by the learned Civil Judge (Junior Division), Sadar Court, Suri, District Birbhum in Title Suit No.134 of 2006 thereby rejecting an application for local investigation. The short fact is that the petitioner instituted a suit being Title Suit No.134 of 2006 before the learned Civil Judge (Junior Division), Suri, Birbhum for recovery of possession, permanent injunction and other reliefs. The defendant is contesting the said suit by filing a written statement denying the material allegations raised in the plaint and the suit was at the stage of peremptory hearing. At that time, the plaintiff / petitioner herein filed an application under Order26 Rule 9 of the C.P.C. praying for local investigation on the points as per his application appearing as Annexure P-1 at page no.31. The opposite party filed a written objection to the said petition and then, upon hearing both the sides, the learned Trial Judge rejected the application for local investigation 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 am of the view that the learned Trial Judge has committed a wrong in rejecting the said application for local investigation. The plaint contains two schedules of properties out of which Schedule ‘A’ is the total land and Schedule ‘B’ is the land over which encroachment had been done by the defendant as per plaint case and recovery of possession has been sought for thereon. While disposing of the application, the learned Trial Judge dismissed the prayer of the plaintiff holding that the Schedule ‘B’ property had been properly identified by plot number and the area of the land describing encroachment to the extent of 60 sq.ft. (4 ft/ 15 ft) on the North-Eastern portion of the Schedule ‘A’ land.) Thus, he rejected the application. Mr. Hiranmoy Bhattacharya appearing on behalf of the petitioner has contended that the plaintiff has described the entire property in Schedule ‘A’ and the encroached portion has been described in Schedule ‘B’ with the specification as given in the schedule of the plaint and as such, it has to be verified, so that the future complications may be avoided. On the other hand, Mr. On the other hand, Mr. Supriya Chatterjee appearing on behalf of the opposite party has contended that the investigation of the suit land is not, at all, required, inasmuch as the encroached area had been properly described in Schedule ‘B’ to the plaint and as such, no investigation is required. In support of his contention he has referred to the decision of Kuresha Khatun & ors. v. Momuddin Ansari (dead) & ors. reported in 2011(2) ICC 778 (Head Note B) passed by this Bench and thus, he submits that in exercising the revisional jurisdiction under Article 227 of the Constitution of India, every wrong decisions made by the lower courts cannot be interfered with under Article 227 if such decisions have been made within the jurisdiction of the lower court. He has contended that in arriving at such conclusion by this Bench, His Lordship has relied on the decision of the Apex Court reported in 1996(3) ICC(SC) 14 (State of Hariyana v. Chandra Mani). Mr. Chatterjee has also contended that according to the decision of Annappa Mestha v. Mutayya Achari reported in 2002 AIHC 1988 when the extent of encroachment is determined and there is no controversy in this regard, the suit property need not be investigated at all. Thus, he has concluded that the learned Trial Judge has rightly rejected the application for local investigation. Upon due consideration of the submissions advanced by learned Advocates of both the sides and on perusal of the materials on record, I hold that the defendants have categorically denied encroachment in his written statement. The paragraph no.7 of the written statement is a clear indication that an investigation as prayed for is necessary for proper adjudication of the matter in dispute. The collection of evidence by local investigation is necessary to solve the dispute once for all. To understand the defence stance in this regard the paragraph no.7 of the written statement is quoted below:- “That the description of the suit property as given in the schedule of the plaint is vague and indefinite and on the basis of vague description of the suit property, no effective decree can be passed. To understand the defence stance in this regard the paragraph no.7 of the written statement is quoted below:- “That the description of the suit property as given in the schedule of the plaint is vague and indefinite and on the basis of vague description of the suit property, no effective decree can be passed. No map of the ‘B’ schedule property i.e. alleged encroached portion of ‘A’ schedule property has not been given by the plaintiff alongwith the plaint.” This paragraph no.7 of the written statement is enough to hold that the investigation is necessary for proper adjudication of the matter in dispute. Above all, the encroached area as mentioned in Schedule ‘B’ to the plaint may be approximately and it may vary but if spot verification is made and the exact measurement of the so-called encroachment is brought to the notice of the court, the future complications could be avoided easily. There will be no hazards at the time of dealing the execution proceedings if the plaintiff / petitioner herein obtains any decree for recovery of possession. The decision of Kuresha Khatun (supra) passed by this Bench is with respect to an application under Order 9 Rule 13 of the C.P.C. when a revision was filed against the order of the misc. case under Order 9 Rule 13 and this Bench observed that every wrong decisions made by lower courts cannot be interfered with under Article 227, if such decisions have been made within the jurisdiction of the lower court. This is not at all applicable in the instant situation for the reasons already recorded above. So far as, other decision of Annappa Mestha (supra) is concerned, I am of the view that the said matter relates to the fact when evidence already on record adduced by both the parties were enough for determination of the encroachment and for that reason, the investigation was not at all considered necessary. In the instant case, as indicated above, recording of evidence has not yet been started, but, the suit is at the stage of peremptory hearing. Before starting evidence, the investigation was sought for. So, it cannot be stated that the application for local investigation has been filed at the belated stage to prolong the litigation. In the instant case, as indicated above, recording of evidence has not yet been started, but, the suit is at the stage of peremptory hearing. Before starting evidence, the investigation was sought for. So, it cannot be stated that the application for local investigation has been filed at the belated stage to prolong the litigation. Since, no evidence on behalf of the either side has been recorded in the instant case, it is fit and proper for holding a spot investigation to know the area of the encroachment as alleged by the petitioner. Otherwise, complications will arise at the time of execution of the decree, if passed subsequently in the suit. Therefore, this decision, I hold, is not also applicable in the instant case. In that view of the matter, I am of the opinion that the learned Trial Judge has failed to exercise the jurisdiction vested in him and that he has committed errors of law in rejecting the application for local investigation. Accordingly, the revisional application succeeds. The application for local investigation appearing at Annexure P-1 at page no.13 stands allowed. The learned Trial Judge shall proceed with the suit from the stage of allowing the application for local investigation and he shall issue a writ of commission for investigation at an early date. He shall give necessary direction to the learned Commissioner to submit the report at an early date as the suit for the reliefs already stated earlier, was filed in the year 2006. Considering the circumstances, there will be no order as to costs.