Research › Search › Judgment

Calcutta High Court · body

2011 DIGILAW 488 (CAL)

Cooch Behar Kshatriya Society v. Raj Kumar Thakur

2011-04-05

PRASENJIT MANDAL

body2011
Judgment :- Prasenjit Mandal, J. This application is at the instance of the plaintiffs and is directed against the order dated May 15, 2008 passed by the learned Civil Judge (Sr. Division), Cooch Behar in Title Suit No.9 of 2007 thereby rejecting an application under order 26 Rule 9 of the C.P.C. filed by the plaintiffs. The short fact is that the plaintiffs instituted a suit being T.S. No.9 of 2007 against the opposite parties for recovery of possession of the suit properties as described in the schedule of the plaint against the defendants/opposite parties herein before the learned Civil Judge (Sr. Division). The defendants are contesting the said suit by filing an written statement. The issues have been framed. The suit was at the stage peremptory hearing. At this stage, the plaintiffs filed an application for local investigation by appointing an Amin Commissioner contending, inter alia, that the land possessed by the defendants separately should be investigated, so that the appropriate reliefs might be passed in the said suit. That application for appointment of an Amin Commissioner was rejected. Being aggrieved, this 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, I find that the suit filed by the plaintiffs is for recovery of possession in respect of the suit properties as described in the schedule of the plaint and the plaint lays down in details the quantum of land held by the defendants separately. The relief has been sought for accordingly. Not only that the land possessed by the defendants have also been shown by a sketch map attached to the plaint so that there may not be any difficulty in understanding as to the fact what portion of the land is possessed by which defendant. The relief has been sought for accordingly. Not only that the land possessed by the defendants have also been shown by a sketch map attached to the plaint so that there may not be any difficulty in understanding as to the fact what portion of the land is possessed by which defendant. Moreover, from the materials on record I find that previously the defendants of the instant suit filed a suit being T.S. No.42 of 1995 before the learned Munsif, Cooch Behar over the selfsame properties in suit and in that suit the plaintiffs/opposite parties herein prayed for a decree of declaration that the plaintiffs are occupiers/possessors of the suit properties having possessory right over the same, the decree of permanent injunction restraining the defendants / plaintiffs herein so that their men may not evict the plaintiffs from the suit properties save due process of law and other reliefs. The defendants / plaintiffs herein contested the said suit and then the suit was decreed. So, the extent of possession by the defendants / opposite parties herein in respect of the suit properties have been decided in the earlier suit. The Appellate Court in Title Appeal No.24 of 1998 affirmed the decree passed in that suit. The plaintiffs are sure in their plaint as to the properties in suit over which they claim for a recovery of possession. This being the position if the prayer as sought for granted, it will create unnecessary delay in the disposal of the suit. The learned Trial Judge has rightly observed that the application for local investigation by an Amin Commissioner should be rejected. The complete remedy as claimed by the petitioners could well be granted. There is no need of local investigation at all. The learned Trial Judge has, therefore, rightly rejected the application for appointment of an Amin Commissioner. So, I hold, that there is nothing to interfere 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. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.