M/S. Benchmark Developers Pvt. ... vs Sri Sushil Sardar & Ors
2022 Latest Caselaw 811 Cal

S/L 11
24.02.2022
Court No.8
SD
                                FAT 430 of 2019
                            (Via Video Conference)

                       M/s. Benchmark Developers Pvt. Ltd.
                                        Vs.
                             Sri Sushil Sardar & Ors.


             Mr. Indranath Mukherjee
             Mr. Sukanta Mondal
                                                      ... for the Appellant.
             Mr. Ashim Kumar Routh
                                               ... for the Respondent No.1.

In a suit for declaration and permanent injunction the

trial court while declaring the shares of the plaintiffs in the

'A' Schedule property did not grant recovery of possession in

respect of the land alleged to have been encroached by the

defendants. The suit was heard ex parte in spite of repeated

opportunities. The defendants do not appear and contest the

proceedings.

Mr. Indranath Mukherjee, learned counsel appearing

on behalf of the appellant, has drawn our attention to the

report filed by the Advocate Commissioner that was marked

as Exhibit 11 to show that the Advocate Commissioner has

arrived at a finding that there has been an encroachment of

630 sq.ft. demarcated by yellow colour in the report filed by

the Advocate Commissioner on March 21, 2014.

It appears from the impugned judgment and decree

that report of the Advocate Commissioner was not

considered by the learned Civil Judge (Senior Division), 1st

Court, Barasat.

We feel that the Commissioner's report is material

piece of evidence which ought to have been considered by the

learned Civil Judge (Senior Division), 1st Court, Barasat while

deciding the suit. Moreover, we find that the suit was

decreed in part without recovery of possession.

Under such circumstances, we direct the learned Trial

Judge to decide the issue with regard to the recovery of

possession and other reliefs claimed in the plaint and not

allowed, in the light of the report of the Advocate

Commissioner and any other available materials.

However, we also wish to give a chance to the

defendants to argue as the said report does not conclusive to

establish the encroachment by the defendant no.1 over the

plaintiff's land. No further pleadings by any of the parties

shall be allowed.

The defendant no.1 shall be entitled to argue that the

plaintiff even on the basis of the available record is not

entitled to a decree. The learned trial court shall pass a

decree afresh after considering the appellant's case and

taking into consideration the observations made by us in this

order.

We have not touched the part decree allowed in favour

of the plaintiff and so far as the remaining claim is

concerned, the same has to be decided by the trial court in

terms of this order.

The learned Trial Judge is directed to dispose of the

suit preferably within a period of three months from the date

of communication of this order without granting any

unnecessary adjournment to either of the parties.

With the aforesaid observations, the appeal being FAT

430 of 2019 stands disposed of.

The lower court records shall immediately be send

down to the learned Civil Judge (Senior Division), 1st Court,

Barasat, North 24 Parganas.

The learned Registrar Administration (L&OM) must

ensure the compliance of this order.

However, there shall be no order as to costs.

All parties shall act on the server copy of this order

duly downloaded from the official website of this Court.

(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)