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2011 DIGILAW 980 (CAL)

Priti Roy v. Jaya Naskar

2011-07-27

DIPANKAR DATTA

body2011
JUDGMENT 1. THE petitioner is the plaintiff in a suit for declaration and permanent injunction. It is her claim in the plaint that the suit property, measuring 1 cottah 10 chittaks 8 sqaft. of 'bagan' land and comprised in Dag No.2562, was purchased by her from the defendant No. 1 (since deceased) by a registered deed of sale dated October 19, 1999 on valuable consideration. Since purchase, coupled with delivery of possession of the suit property, the petitioner is in peaceful possession thereof as absolute owner. While being seized and possessed of the suit property, the petitioner had received notice in connection with proceedings initiated by the defendant No.2 under section 144(2) of the Code of Criminal Procedure. For the first time, the petitioner came to learn from the application that the defendant No. 1 had sold the suit property to the defendant No.2 by a purported sale deed dated April 4, 2000. Accordingly, the suit was instituted praying for a declaration that the sale deed dated April 4, 2000 executed by and between the defendant Nos. 1 and 2 is void, invalid and inoperative and not binding on the petitioner and for permanent injunction restraining the defendants and/or their men and/or agents from interfering with peaceful possession and smooth enjoyment and user of the suit property by the petitioner. 2. AN application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (hereafter the CPC) was filed by the petitioner in connection with the suit seeking temporary injunction so that the defendants could be restrained from interfering with and/or disturbing her possession of the suit property. At or about the same time, the defendant No.2 filed an application under Order 39 Rule 7 of the CPC. It was pleaded in the said application by the defendant No.2 that he had right, title and interest in respect of the suit-property arid was in possession thereof, wherefrom he was running his business. The application was filed for bringing the actual picture of the suit property to the notice of the trial Court. The applications were contested by the respective respondents therein. The application under Order 39 Rules 1 and 2 was disposed of by an order dated May 10, 2002, whereby the trial Court directed maintenance of status quo in respect of the suit property till disposal of the suit. The applications were contested by the respective respondents therein. The application under Order 39 Rules 1 and 2 was disposed of by an order dated May 10, 2002, whereby the trial Court directed maintenance of status quo in respect of the suit property till disposal of the suit. By the self-same order, the application under Order 39 Rule 7 was also allowed. A learned advocate was appointed Commissioner to hold commission on the points mentioned in the schedule of the application, which read as follows: "Points for Inspection I. To draw a sketch map in respect of the suit property and to note actual topography of the suit property and to note as to whether wooden pattern business is running in the suit property or not. II. Local featuers." 3. PART of the order dated May 10, 2002, whereby the prayer of the defendant No.2 for local inspection was allowed, was challenged by the petitioners before this Court by filing an application under Article 227 of the Constitution. A learned Judge of this Court by order dated October 29, 2003 was pleased to allow the revisional application. The appointment of the Advocate Commissioner for the purpose of local inspection of the suit property was set aside on the ground that question of possession can never be ascertained by way of local inspection. The suit was directed to be disposed of expeditiously. 4. THE suit is being contested by the defendant No.2. In his written statement, he set up a counter claim and prayed for a decree declaring the sale deed executed by and between the defendant No. 1 and the petitioner as void and inoperative. On or about January 18, 2011, the defendant No.2 again made an application under Order 39 Rule 7 of the CPC read with section 151 thereof. He had also filed an application under section 151 of the CPC for effecting repairs. It was pleaded in the application that his structure standing on the suit property, by natural wear and tear, had been damaged and that the same could collapse at any time. He wanted to repair the same to make it habitable; however, the petitioner had, with dishonest motive, obstructed him in repairing the same. It was pleaded in the application that his structure standing on the suit property, by natural wear and tear, had been damaged and that the same could collapse at any time. He wanted to repair the same to make it habitable; however, the petitioner had, with dishonest motive, obstructed him in repairing the same. Hence for the purpose of ascertaining the actual picture of the suit property a prayer was made for appointment of a Commissioner to hold inspection on the following points: "Points for Inspection I. To draw a rough sketch map in respect of the suit property. II. To note the nature and condition of the suit rooms. III. To note the actual topography of the suit room. IV. Local featuers." 5. THE application was opposed by the petitioner by filing a written objection. THE claimed possession of the defendant No.2 in respect of the suit property was denied and disputed. She referred to the earlier order passed by this Court whereby the order passed by the trial Court allowing the application for local inspection was set aside. It was urged that the defendant No.2 was attempting to fish out evidence by way of commission, which ought not to be allowed. Accordingly, it was prayed that the application for local inspection may be rejected. 6. THE application was considered by the trial Court on contest. By an order dated June 2, 2011, the prayer for local inspection has been allowed. This order forms the subject matter of challenge in this revisional application under Article 227 of the Constitution. Mr. Banerjee, learned senior advocate representing the petitioner contended that having regard to the facts and circumstances of the particular case, the learned Judge exercised discretion erroneously by allowing the application for local inspection. According to him, the application ought to have been rejected keeping in mind the previous order of this Court dated October 29, 2003 wherein certain observation was made recognizing possession of the petitioner. It was further contended that the defendant No.2 in his written objection stated that khas and vacant possession of the suit property being 'bagan' land was made over and, therefore, question of any structure having been raised or put up on the suit property does not and cannot arise. The schedule of the written statement, whereby the defendant No.2 raised counter claim, was next referred to by Mr. The schedule of the written statement, whereby the defendant No.2 raised counter claim, was next referred to by Mr. Banerjee wherein the defendant No.2 had reiterated that the suit property is a 'bagan' land. It was pointed out that the schedule of the suit property in the written statement does not refer to any structure and, therefore, the application for local inspection filed by the defendant No.2 was misconceived and ought not to have been allowed by the trial Court. Finally, it was submitted that the defendant No.2 by filing the application was attempting to unsettle a settled position and if the impugned order is allowed to stand, that would result in failure of justice. He, accordingly, prayed for setting aside of the impugned order. 7. MR. Roy, learned advocate appearing for the defendant No.2/opposite party No.7 herein assiduously argued that the learned Judge was perfectly justified in allowing the application for local inspection. He referred to Order 39 Rule 7 of the CPC to emphasize the point that inspection of the suit property can be ordered at any stage of the proceedings and that discretion having been exercised by the learned Judge judiciously, the impugned order does not merit interference. In support of his submission, MR. Roy relied on the decisions of this Court reported in AIR 1933 Cal 475 (Amulya Kumar Samaddar and Ors. v. Armada Charan Das and Ors.), AIR 1981 Cal 319 (Nitindra Nath Roy Choudhury and Ors. v. Subhas Chandra Kar) and 2011 (2) ICC 281 (Sistr Saha and Ors. v. Baby Begum @ Mehera Begum and Anr.). He, accordingly, prayed for dismissal of the revisional application. 8. I have heard learned advocates for the parties and considered the materials on record. Order 39 Rule 7 of the CPC provides as follows: "7. Detention, preservation, inspection, etc., of subject-matter of suit. v. Baby Begum @ Mehera Begum and Anr.). He, accordingly, prayed for dismissal of the revisional application. 8. I have heard learned advocates for the parties and considered the materials on record. Order 39 Rule 7 of the CPC provides as follows: "7. Detention, preservation, inspection, etc., of subject-matter of suit. – (1) The Court may, on the application of any party to a suit and on such terms as it thinks fit, - (a) make an order for the detention, preservation or inspection of any property which is the subject-matter of such suit, or as to which any question may arise therein; (b) for all or any of the purposes aforesaid authorize any person to enter upon or into any land or building in the possession of any other party to such suit; and (c) for all or any of the purposes aforesaid authorise any samples to be taken, or any observation to be made or experiment to be tried, which may seem necessary or expedient for the purpose of obtaining full information or evidence. (2) The provisions as to execution of process shall apply, mutatis mutandis to persons authorized to enter under this rule." The object of the said provision is to enable the Court to ascertain the Condition of the suit property or any part thereof on local inspection by appointing a Commissioner. The question as to who between the parties is in possession of the suit property cannot be ascertained by way of local inspection. It is for the parties to adduce evidence to enable the Court to arrive at a conclusion in this respect. However, inspection of any property, being the subject matter of the suit, may be directed by the Court when the occasion demands so and when inspection is necessary for proper appreciation and adjudication of the matter. In the Bench decision reported in AIR 1997 Cal 80 (Allahabad Bank v. Sourendra Nath Shaw and Anr.) it was held that an order for inspection for ascertaining the condition of the concerned premises or any part thereof comes within the purview of Order 39 Rule 7 of the CPC. The Bench decision reported in 15 CWN 353 (Amjad Ali v. Ali Hussain Johan) is an authority for the proposition that an order under Order 39 Rule 7 could be made for inventory of structures, fixtures, movables etc. 9. The Bench decision reported in 15 CWN 353 (Amjad Ali v. Ali Hussain Johan) is an authority for the proposition that an order under Order 39 Rule 7 could be made for inventory of structures, fixtures, movables etc. 9. IT has been noted from the order of the trial Court directing preservation of status quo of the suit property that no finding was given as to who between the petitioner and the defendant No.2 is in possession. Although it is true that title is followed by possession and that a presumption may be drawn that the petitioner being the prior purchaser of the suit property is in possession thereof, as observed by the learned single Judge in the earlier round of litigation in this Court, such presumption is rebuttable and in fact has been rebutted by the defendant No.2 by claiming all throughout that he is in possession and that the sale deed by which the petitioner claims to have derived right, title and interest is a fraudulent document. The application filed by the defendant No.2 seeking an order permitting him to effect repairs of the structure is pending before the trial Court. The petitioner has opposed the application by contending that there was no structure. In order to decide the application for repairs pending before the Court, Order 39 Rule 7 empowers it to have the suit property inspected for obtaining a clear picture thereof in general and in particular as to whether any structure is standing thereon or not and if yes, whether it requires repair or not. The order that has been passed by the trial Court does come within the purview of Order 39 Rule 7. IT is not that the report that might be filed by the Commissioner is sacrosanct and the trial Court would be bound to accept its correctness if it is tendered in evidence. Moreover, the party taking objection or exception to such report is entitled to examine the Commissioner. The order for inspection is in aid of adjudicating the application under section 151 of the CPC filed by the defendant No.2 and, therefore, I am of the considered view that the learned judge did not exercise discretion erroneously as contended by Mr. Banerjee. The view that I have taken also finds support from the decisions cited by Mr. Roy. 10. THERE is no reason to interfere. Banerjee. The view that I have taken also finds support from the decisions cited by Mr. Roy. 10. THERE is no reason to interfere. The revisional application stands dismissed without order for costs. Revisional application dismissed.