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2013 DIGILAW 531 (CAL)

Balaram Ghosh v. Sharda Devi

2013-08-01

PRASENJIT MANDAL

body2013
Judgment :- Prasenjit Mandal, J. This application is at the instance of the defendant and is directed against the Order No.30 dated July 1, 2013 passed by the learned Additional District Judge, 10th Court, Alipore in Misc. Appeal No.11 of 2012 arising out of the Title Suit No.2 of 2012. The plaintiffs/opposite parties herein instituted the aforesaid suit before the learned Civil Judge (Junior Division), 2nd Court, Alipore against the petitioner for a decree of declaration that the defendant has no right or authority to invade and/or obstruct and/or interfere with the peaceful user and enjoyment of the suit property through the said driveway/passage without any obstacles or inconveniences of the plaintiffs and/or their family members, a decree for declaration that the defendant and his men have no right to raise the boundary wall from East to West appertaining the suit property or cause any encroachment thereupon and the same ought to be kept open to sky and other consequential reliefs. At the time of filing of the said suit, the plaintiffs prayed for temporary injunction along with a prayer for ad interim injunction. The learned Trial Judge refused to grant ad interim order of injunction. Being aggrieved, the plaintiffs preferred a misc. appeal being Misc. Appeal No.11 of 2012 before the learned District Judge and the said misc. appeal is now pending before the learned Additional District Judge, 10th Court, Alipore. During the pendency of the said misc. appeal, the plaintiffs filed an application under Order 26 Rule 9 of the C.P.C. for local investigation upon certain points. Upon hearing both the sides, that application was allowed by the impugned order. Being aggrieved, this application has been preferred by the defendant/petitioner herein. 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 property has been clearly indicated at page no.111 as Annexure-Y to the application. The building, marked as Lot-B, is the suit property purchased by the plaintiffs/appellants. The building Lot-A is possessed by the defendants and this Lot-A is adjacent South to the building Lot-B. There is a common passage starting from Southern end of the building Lot-A starting from Burdwan Road and it went up to the end of the building Lot-B towards the Northern side. The building Lot-A is possessed by the defendants and this Lot-A is adjacent South to the building Lot-B. There is a common passage starting from Southern end of the building Lot-A starting from Burdwan Road and it went up to the end of the building Lot-B towards the Northern side. The plaintiffs purchased the Lot-B property with specific length and breadth and the land belonging to the defendant, as building Lot-A, is also clear with regard to length and breadth. So, also the common passage as indicated in the said page no.111 and so, both the plots and the common passage are with specific length and breadth i.e. well demarcated with boundaries. Under the circumstances, the land purchased by the plaintiffs is very much clear by the description of the length and breadth as indicated by the sketch map. Now, the problem has cropped up when the plaintiffs want to use the common passage for ingress to and egress from their purchased land through the common passage more particularly, for plying the vehicles through the common passage. It is pertinent to mention that although the two plots are quite separate by specific description of the boundaries as indicated at page no.111, the sanction of the building plan in respect of the two plots mentioning Lot-B and Lot-A had been done as if construction of the two buildings was going to be made on a common land. It is also pertinent to mention that the flat owners of the plot Lot-B are to park their cars on the space as indicated in the triangular form towards South of their construction as per sanctioned plan. But, they are to make use of the common passage starting from the Burdwan Road situated towards South of the building Lot-A and such common passage is meant for both the plots as indicated in the sanctioned plan. The plaintiffs have contended that the defendants are trying to make a construction of a wall from East to West in between the two plots, i.e., Lot-B and Lot-A so that the plaintiffs cannot utilize the parking space as per sanction by the concerned Municipal Corporation. If the construction as alleged by the plaintiffs is raised, the plaintiffs/appellants/opposite parties herein will not be in a position to pass through the common passage with their vehicles to the parking space under Lot-B as sanctioned by the Corporation. If the construction as alleged by the plaintiffs is raised, the plaintiffs/appellants/opposite parties herein will not be in a position to pass through the common passage with their vehicles to the parking space under Lot-B as sanctioned by the Corporation. So, they will face difficulties in parking the cars in the space meant for Lot-A of the plaintiffs. Under the circumstances, although the plaintiffs have purchased the land with specific boundaries and descriptions as indicated in page no.111, I am of the view that since the two building plans had been sanctioned as if the two buildings were being constructed on a common plot no. 17B, Burdwan Road, a local investigation by a Survey Passed Commission is a must for proper adjudication of the matter in dispute. The points for local investigation have been clearly indicated in Annexure-P2 appearing at page no.33 of the application and the relevant points for local investigation are at page no.37 and the points for local investigation as noted therein, in my view, are necessary for proper adjudication of the dispute between the parties. These points cannot be described as unreasonable or unnecessary in spite of the specific description of the suit property by its length and breadth and the sketch map under the changed circumstances. In such a situation, although there may not be any boundary dispute between the parties, the relevant factors that come to light is if the construction as alleged by the plaintiffs is raised, whether the plaintiffs would be able to ply their vehicles through the passage for ingress to and egress from the allotted space as indicated in the sanctioned plan in respect of the Lot-B property. In my view, the local investigation on the points as indicated above, will be the opposite way for adjudication of the dispute between the parties. Accordingly, I am of the view that the learned First Appellate Court is quite justified in allowing the application for local investigation but on different grounds as indicated above. The impugned order should be sustained. I am, therefore, of the view that there is no scope of interference with the impugned order. The application 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.