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2016 DIGILAW 406 (CAL)

Swapan Kumar Mondal v. Haripada Debnath

2016-05-05

INDRAJIT CHATTERJEE

body2016
JUDGMENT : Indrajit Chatterjee, J. This is an application under Article 227 of the Constitution of India in which the order No.8 dated 13th August, 2015 and order No. 14 dated 22nd September, 2015 as passed by the Civil Judge (Junior Division), Kakdwip, within the district of South 24-Parganas in the Title Suit No. 70 of 2015 has been assailed. 2. In the second order, the learned Trial Court disposed of the application filed by the plaintiff praying for police assistance under section 151 of the CPC to see that the learned Advocate-Commissioner may inspect the property peacefully. The order was passed in favour of the plaintiff/opposite party and the police assistance was granted. 3. In the first order, the learned Trial Court disposed of one application filed by the plaintiff praying for appointment of a local Inspection-Commissioner and also to do necessary repair works in presence of the Advocate-Commissioner. That petition was disposed of ex parte with an order for appointment of one Advocate-Commissioner for the said purpose. 4. The fact further reveals that when the learned Advocate-Commissioner went to inspect the property, the present petitioners raised objection to that work and the work could not be completed. 5. Thus, another application was filed by the plaintiff praying for police assistance which was disposed of as per the second order. In this case, the present plaintiff has prayed for declaration of title over the suit property and for permanent injunction against the defendants/opposite parties and they have claimed that the defendants are rank outsider and they are disturbing the peaceful possession of the property. 6. It may be noted that an order was passed by the learned Trial Court directing both the parties to maintain status quo in respect of the possession of the suit property. 7. It is submitted by the learned Advocate appearing on behalf of the petitioners by taking me to the report of the Advocate-Commissioner dated 21-04-2013, which is at running pages 24 to 27, to show that the said report was made to order report and the Commission work was done at a haste without giving any notice to the defendants/opposite parties. He also took me to the impugned order passed by the learned Trial Court including the order No.1 dated 21-03-2015 vide which the Advocate Commissioner was appointed. He also took me to the impugned order passed by the learned Trial Court including the order No.1 dated 21-03-2015 vide which the Advocate Commissioner was appointed. It is his further submission that now the defendants have entered into appearance by filing W/S in which the defendants/petitioners have claimed that they are in possession of the suit property as bargadar as well as a licensee. 8. Thus, it is the prayer of the petitioners that the report of the learned Advocate-Commissioner be set aside. This Court is apprised by the learned Advocate appearing on behalf of the petitioners that taking advantage of the police assistance order, the present opposite parties have demolished the existing structure over the suit property and they are trying to raise construction over there and have stacked bricks on the suit property. 9. It is submitted by the learned Advocate appearing on behalf of the present opposite parties that the learned Trial Court passed the order for repairing of the suit property relying on the report of the learned Advocate-Commissioner and also considering the conduct of the present defendants, which they did when the Commission work was being carried on. 10. He referred to the written statement filed by the present petitioners to say that how over a bastu land there may be barga right of the present petitioners. 11. On scrutiny of the written statement filed by the present opposite parties, this Court is satisfied that the defendants also made out a case as regards their possession and title over the suit property. It is true that in the plaint itself, the present opposite parties/plaintiffs also made a claim that they have titled over the suit property. There is claim and rival claim as regards the title and possession over the suit property. The learned Trial Court could not appreciate the position and while passing the very first order, he directed both parties to maintain status quo. The order of status quo is vague one. The learned Trial Court did not try to fathom who is in actual possession of the suit property. According to this Court, passing of such an order without considering the possession of the suit property is bad in law. 12. That the learned Trial Court erred in passing the impugned order is apparent. The learned Trial Court did not try to fathom who is in actual possession of the suit property. According to this Court, passing of such an order without considering the possession of the suit property is bad in law. 12. That the learned Trial Court erred in passing the impugned order is apparent. On the very same day, he allowed the ex parte prayer of the plaintiffs/opposite parties to appoint one local Inspection-Commission as per order dated 21-03-2015. The learned Advocate-Commission went to the locality on 28th March, 2015 without serving a prior notice to the defendants. It may be noted that even at that point of time, the defendant/tenant did not engage any Advocate. The Commissioner submitted his report and the Court acting on that report thereafter passed an order that the suit property repair in presence of another learned Advocate-Commissioner. The writ was issued accordingly. 13. Here I like to say what prompted the learned Trial Court to act in such a hurry to dispose of two vital matters ex parte as on that point of time, the defendants did not appear before the learned Trial Court. The learned Trial Court ought to have ascertained as regards the possession of the property to fully convince itself and if the learned Trial Court was fully convinced that the property was in exclusive possession of the present plaintiffs, then only such order for repairing of the suit property would have rightly passed. The learned Trial Court banks too much on the report of the Advocate-Commissioner. The report of the Advocate-Commissioner cannot be taken to be sacrosanct, particularly when the commission work was done ex parte. 14. I am told that one application was pending before the District Judge, South 24-Parganas at Alipore being Misc. Case No. 762 of 2015 as filed by the present petitioners for withdrawal of that case from the file of the learned Trial Court in which some allegations have been made against the present Trial Court. The learned District Judge is directed to dispose of the said application as early as possible within one month from the date of the communication of this order without being influenced by any observation made by this Court in this revisional application. 15. The learned District Judge is directed to dispose of the said application as early as possible within one month from the date of the communication of this order without being influenced by any observation made by this Court in this revisional application. 15. Thus, considering the discussion so long made, this Court is satisfied that the learned Trial Court disposed of the matter in a hot haste and passed the subsequent order of repairing with the police assistance mainly relying on the Advocate-Commissioner report. This Court is not unmindful of the fact that an order of status quo was passed by the same Court directing the parties to maintain status quo in respect of the possession, right, title and interest over the suit property. I wonder that when such order was there, how the learned Trial Court went ahead to pass the order for repairing of the suit premises. 16. Thus, in view of the aforesaid discussions, both the orders impugned are hereby set aside. 17. The revisional application is allowed on contest without any costs. 18. The learned Trial Court is advised to ascertain first who is in possession of the property and thereafter, he will pass such order regarding repairing etc. The learned Trial Court is also directed to see that the money deposited by the present opposite parties for police assistance be returned back to them with liberty to deposit such costs as and when required. 19. Office is directed to communicate this order to the learned Trial Court and also to the District Judge, South 24-Parganas at Alipore. 20. Parties will be at liberty to apprise the learned 'rrial Court and also the District Judge regarding this order. 21. Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.