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2015 DIGILAW 168 (CAL)

SUSHILA MONDAL v. MAYARANI PAL

2015-02-23

ARIJIT BANERJEE

body2015
JUDGMENT : Supplementary affidavit filed on behalf of the opposite parties be kept on record. 2. The petitioners are the plaintiffs in Title Suit No. 161 of 1994 pending in the court of learned Civil Judge (Junior Division), 2nd Court, Hooghly. The petitioners are the owners of the property described in Schedule ‘A’ to the plaint. The defendants are the owners of the property described in Schedule ‘B’ to the plaint. The property described in Schedule- ‘C’ is the alleged pathway lying on the eastern side of the ‘B’ Schedule property. The plaintiffs have, inter alia, prayed for declaration that they have right by way of easement in respect of the ‘C’ Schedule property. 3. The defendants in the written statement denied the existence of any such passage in the ‘B’ Schedule property. 4. The plaintiffs made an application under Order 26 Rule 9 of the Code of Civil Procedure for local investigation to ascertain whether or not the disputed passage, in fact, exists. By an order dated 8th June, 2006, learned trial Judge dismissed the application of the plaintiffs primarily on the ground that the alleged passage is not recorded either in the C.R. map or R.S. map of the concerned Dags and hence, it would be impossible for a Commissioner to ascertain the existence or otherwise of such passage by relayment of concerned maps. Learned Judge also observed that a Commission cannot be issued to collect evidence and further that the application for Commission was taken out by the plaintiffs after a long delay showing cavalier attitude of the plaintiffs. On these grounds, the application for Commission was rejected. 5. The plaintiffs made an application for review of the said order of the learned Judge wherein, inter alia, the plaintiffs pointed out that the sale deed nos.994 of 1930 and 8000 of 1971 clearly mention the existence of the passage concerned. These two sale deeds were not considered by the learned trial Judge while passing the order dated 8th June, 2006. 6. By an order dated 4th July, 2006, learned trial Judge allowed the review application and the plaintiffs’ petition for local investigation was allowed. Learned Judge held that indeed he had not taken into consideration the said two deeds while passing the earlier order and this warranted review of the earlier order. 7. Being aggrieved the defendants preferred an appeal being Misc. Learned Judge held that indeed he had not taken into consideration the said two deeds while passing the earlier order and this warranted review of the earlier order. 7. Being aggrieved the defendants preferred an appeal being Misc. Appeal No. 71 of 2006 before the learned Additional Court of Civil Judge (Senior Division), Hooghly. By a judgment and order dated 9th January, 2008, learned first appellate court allowed the appeal and set aside the order of the learned trial Judge. Learned appellate court observed that as there is no existence of path in the record of right in respect of the ‘C’ Schedule property, appointment of a Survey Commissioner will create more complications and delay in disposal of the case. 8. Being aggrieved by the judgment and order of the learned first appellant court, the plaintiffs have come up to this court by way of the instant revisional application. 9. The revisional application was heard and disposed of by a learned Judge of this court by a judgment and order dated 24th June, 2011 whereby the application was dismissed. 10. The petitioners applied for review of the said order of this court on the ground that the findings in the order were in favour of the petitioners and as such, the revisional application should have been allowed. By an order dated 5th January, 2012 the learned Single Judge allowed the application for review and set aside the judgment and order dated 24th June, 2011 passed in C.O. 1271 of 2008 with a direction that the said C.O. 1271 of 2008 shall be heard in presence of both sides afresh. This is how the matter is before this court today. 11. Learned counsel for the petitioners submits that since there is a real dispute regarding the existence of the passage concerned, it is absolutely essential that the local investigation be carried out to ascertain the true state of affairs. The court will not be able to find out the correct position from the evidence of the parties since that would be only oath against oath. Hence, court requires appointment of a Commissioner for local investigation and the learned trial Judge, on review, rightly passed the order for appointment of Commissioner. He points out that the learned first appellate court did not take note of the aforesaid two sale deeds and this was a major irregularity in the order impugned. Hence, court requires appointment of a Commissioner for local investigation and the learned trial Judge, on review, rightly passed the order for appointment of Commissioner. He points out that the learned first appellate court did not take note of the aforesaid two sale deeds and this was a major irregularity in the order impugned. He further apprises this court that the Commissioner appointed by the learned trial court has already carried out local investigation and has prepared his report but has not filed the same in court. He prays for setting aside of the learned first appellate court’s order and restoration of the learned trial court’s order. 12. Learned counsel for the defendants/opposite parties strongly opposes this application. He submits that the learned trial court erred in reviewing its earlier order. No ground for review as indicated under Order 47 Rule 1 of the Code of Civil Procedure existed. Learned trial Judge could not have upset his own order. He submitted that by way of local investigation, the plaintiffs are only fishing for evidence which is not permissible in law. He submitted that no useful purpose will be served by conducting local investigation since the concerned passage does not find mention in the C.S. or R.S. record. He prays for dismissal of the present revisional application. 13. I have considered the rival contentions of the parties. I am inclined to agree with the submission of the learned counsel for the petitioners. Whether or not the disputed passage exists is a point which will go to the root of the plaintiffs’ claim in the suit. Since the record of right is silent on the point, the appointment of a Survey Commissioner, in my opinion, is necessary and I am of the view that the learned trial Judge was justified in appointing a Survey Commissioner to determine the true state of affairs. It appears that the defendants also participated in the process of investigation held by the learned Commissioner. 14. The order of the learned trial court, in my opinion, does not cause any real prejudice to the defendants. In my view, learned appellate court should not have interfered with the learned trial court’s order. I have further noted that the learned appellate court failed to consider the two sale deeds and thereby the appellate court has ignored extremely material documents and has come to an erroneous finding. In my view, learned appellate court should not have interfered with the learned trial court’s order. I have further noted that the learned appellate court failed to consider the two sale deeds and thereby the appellate court has ignored extremely material documents and has come to an erroneous finding. In my view, the order of the appellate court has caused unwarranted prejudice to the plaintiffs and for the ends of justice, the same needs to be set aside. 15. For the reasons aforesaid, this application succeeds. The order impugned is set aside and the order of the learned trial court dated 4th July, 2006 is restored. The Commissioner will file his report in the trial court within one week from the date of communication of this order. Such report will be a piece of evidence in the suit and the weight to be attached to such report will be for the learned trial Judge to decide. 16. It is needless to say that it will be open to the defendants to make appropriate submission in respect of the report. 17. Since this is a suit of 1994, it is desirable that the suit is disposed of at an early date and positively within a period of six months from the date of communication of this order. 18. I make it clear that I have not gone into the merits of the case. This application is accordingly disposed of. 19. Certified copy of this order, if applied for, be supplied to the parties on priority basis.