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2020 DIGILAW 410 (CAL)

Jalaram Timber Co v. Mahananda Das

2020-03-11

SUBHASIS DASGUPTA

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JUDGMENT Subhasis Dasgupta, J. - The impugned order No. 48 dated 21.02.20185, passed by learned Civil Judge (Junior Division), 1st Court, Serampore in Title Suit No. 288 of 2013, rejecting the prayer for local investigation under Order 26 Rule 9 of the C.P.C. is under challenge in this revisional application. 2. Learned court below, for want of a boundary dispute, absence of a claim of encroachment, was not satisfied with the prayer for local investigation, and accordingly rejected the same. 3. Learned advocate for the petitioner/plaintiff assailing the impugned order submitted that the learned court below had improperly exercised its authority in understanding the real purport of the provisions contained in Order 26 Rule 9 C.P.C., as the court was empowered to issue local investigation commission for the purpose of elucidating any matter in dispute, even in absence of a case based on boundary dispute, encroachment and recovery of possession also. 4. Per contra, learned advocate for the opposite party/defendant No.1 supporting the order of the learned court below replied that the entire effort of petitioner was to collect evidence favourable to his purpose, and the same being the sole objective purpose of local investigation, the prayer for local investigation had been rightly rejected. 5. It was contended by the learned advocate for the opposite party that it was not a case based on boundary dispute, nor a encroachment with prayer for recovery of possession, without which the prayer for local investigation cannot be instrumentalized to fish out evidence. 6. Before addressing the issue raised, mentioning of some salient facts is felt necessary, which may be adumbrated as follows. 7. The claim of petitioner/plaintiff is that there lies a saw mill in "A" schedule property, corresponding to R.S. Plot No. 130 under Khatian No. 215, L.R. Plot No. 141 giving rise to Khatian No. 1298, 1345, 55, 1630, 1631, 1362 within Mouza Krishnapur under Garalgacha Gram Panchayat, P.S. Chanditala. 8. The saw mill, is claimed to be owned by plaintiff, for which he has obtained necessary trade license from appropriate authority. Petitioner/plaintiff has claimed his right, title, interest and possession over "A" schedule property by purchase as well as by obtaining settlement in the year 1996 from one Sachindra Nath Manna, who was the original tenant under Government. 8. The saw mill, is claimed to be owned by plaintiff, for which he has obtained necessary trade license from appropriate authority. Petitioner/plaintiff has claimed his right, title, interest and possession over "A" schedule property by purchase as well as by obtaining settlement in the year 1996 from one Sachindra Nath Manna, who was the original tenant under Government. One fine morning on the strength of a deed dated 12th March, 2013, defendants started disturbing possession of plaintiff/petitioner in respect of his peaceful possession over "A" schedule land, claiming their title to the extent covered in such deed, and threatened plaintiff/petitioner to demolish the boundary wall of "A" schedule property. 9. The suit property shown in "A" schedule of plaint is said to be bounded by boundary wall on its north and west side, where there is no access of third party. 10. The plaintiff/petitioner receiving such threat of dispossession from defendants, filed a suit for declaration and injunction against defendants. 11. Admittedly, the prayer for injunction, though initially granted against the defendants, but ultimately it was rejected. 12. Upon perusal of the copy of prayer for local investigation it is abundantly clear that it is not a case based on boundary dispute, nor encroachment with a prayer for recovery of possession. While seeking declaration in the pending suit with respect to "A" schedule property, petitioner had incidentally sought for an order declaring the deed conferring right, title, interest, if any, upon the defendants, be declared to be forged, manufactured and collusively prepared. There is clear stipulation that the suit property, shown in "A" schedule of the plaint is bounded by walls. 13. In course of hearing, identity of "A" schedule property was grossly focussed by either of the parties to this case, stressing upon peculiarity of its location by reason of its proximity with nearest mouza. 14. The fight between the parties is thus squeezed to sole point of disputed location of suit property, what according to petitioner/plaintiff, the suit property shown in "A" schedule is situated in "Krishnapur" Mouza, it is, according to opposite party No. 1/defendant, in Mouza "Kalipur". The situation/location giving rise to identity of "A" schedule property was thus controverted by either of the parties to this case. 15. The situation/location giving rise to identity of "A" schedule property was thus controverted by either of the parties to this case. 15. The court exercising power under Order 26 Rule 9 C.P.C. is empowered to grant local investigation in any suit where the court finds it necessary for the purpose of 1) elucidating any matter in dispute, 2) ascertaining the market value of any property or amount of the mesne profits or damages or annual net profit. 16. The circumstances exposing the eventualities, mentioned in Serial No. 2, shown above, do not get attracted in this case. It is a case, where the prayer for local investigation was advanced simply for the purpose of elucidating any matter in dispute. 17. As has already discussed that according to petitioner/plaintiff the suit property is in "Krishnapur" Mouza, while opposite party No. 1/defenant has turned down the same claiming it to be situated within Mouza "Kalipur". 18. Such controversy as regards location of "A" schedule property with respect to a particular Mouza could have been addressed by other means available under the law, but the prayer should not be rejected merely for not resorting to that available options. 19. The word "Elucidating" appearing in Order 26 Rule 9 C.P.C. speaks for "making something more clearer by explaining it more fully". 20. It was thus prayed for in the interest of explicating the location of "A" schedule property, mentioned in plaint following averments contained in written statement disputing with situation of "A" schedule property. 21. The court shares the view, expressed by the learned advocate for the opposite party that the purpose of local investigation is not to collect evidence, but when the sole purpose being to obtain such things from the very peculiar situational position of suit property, shown in "A" schedule of the plaint, which can only be made from the spot, doing necessary comparison with nearest available Mouza map, for elucidating the dispute surfacing over the situation of "A" schedule property, the same can hardly be regarded for the purpose of collecting evidence only, particularly when there is a claim alleging "A" schedule property situated in Krishnapur Mouza, to be adjoining to Mouza Kalipur Mouza. 22. There is hardly any chance of causing any prejudice to defendants opposing the prayer for local investigation, if such prayer for local investigation is held for setting the issue at rest, and that too permanently. 22. There is hardly any chance of causing any prejudice to defendants opposing the prayer for local investigation, if such prayer for local investigation is held for setting the issue at rest, and that too permanently. 23. Learned court below failed to take care of the probable eventualities appropriately mentioned in Order 26 Rule 9 C.P.C., when prayer for local investigation can be considered in exercise of a lawful authority vested to it. 24. The order impugned thus cannot go unaltered. 25. The revisional application succeeds. 26. The impugned order dated 21.02.2018 in Title Suit No. 288 of 2013 passed by learned Civil Judge (Junior Division), 1st Court, Serampore, is set aside. 27. The prayer for local investigation is allowed under Order 26 Rule 9 C.P.C. for the discussions made hereinabove. 28. Leaned Civil Judge (Junior Division), 1st Court, Serampore is directed to fix a date enabling the petitioner/plaintiff to deposit costs of local investigation, to be assessed by learned court below in accordance with law, and the learned Commissioner be directed to finish the local investigation within six (6) months from the date of deposition of costs by the petitioner/plaintiff, upon notice to the opposite parties, and other formalities in accordance with law. 29. With this observation, and direction, the revisional application stands disposed of. 30. Urgent certified copy of this order and judgment, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.