Sk. Badiyal Rahaman & Ors vs Sri Ashok Kumar Bed & Ors
2023 Latest Caselaw 2967 Cal

S/L 7
27.4.2023

Court No.652 SD CO 3475 of 2018 With CAN 1 of 2022

Sk. Badiyal Rahaman & Ors.

Vs.

Sri Ashok Kumar Bed & Ors.

Mr. Supratim Dhar Mr. Dhananjay Nayak ... for the Petitioners.

Mr. Sourav Sen Mr. Partha Chakraborty Ms. A. Chakraborty Ms. Susmita Chakraborty Mrs. Jayshree Saha Mr. Muhammad Obaid ... for the Opposite Parties.

Being aggrieved and dissatisfied with the Order No.61

dated 11.9.2018 passed by the learned Civil Judge (Junior

Division), 1st Court, Tamluk in Title Suit No.80 of 2013,

present revisional application has been preferred.

By the impugned order, learned court below was

pleased to allow plaintiffs/opposite parties' application for

local investigation commission under Order XXVI Rule 9 of

the Code of Civil Procedure.

The petitioners contended that the opposite parties

herein as plaintiffs instituted aforesaid Title Suit No.80 of

2013 seeking declaration that the defendants/petitioners

herein are the trespassers over the opposite

parties/plaintiffs' land and they have also sought for eviction

of the petitioners/defendants from the said land and also for

permanent injunction.

The petitioners submit that the opposite

parties/plaintiffs herein moved an application for injunction

before the court below along with an application for local

inspection commission under Order XXXIX Rule 7 of the

Code. Said prayer for inspection was allowed and in terms of

the order of the court below, local inspection commission

was held in respect of the suit property and the learned

commissioner has submitted his report.

On 27.6.2018 the opposite parties/plaintiffs filed an

application for local investigation commission in respect of

selfsame property under Order XXVI Rule 9 of the Code and

the petitioners herein as defendants filed their written

objection against the said application. On 11.9.2018 the said

application was taken up for hearing and learned court

below was pleased to allow the said application with the

observation that to elucidate the matter in dispute, local

investigation commission is necessary as per points

mentioned in the schedule of investigation commission

petition.

Learned counsel appearing on behalf of the

petitioners submits that the learned court below has acted

illegally with material irregularity by allowing the said

application. Learned court below had not taken into

consideration that local inspection commission has already

been conducted in respect of the suit property and as such,

there is no necessity for conducting further local

investigation commission in respect of the selfsame

property. Court below also erred in holding that for the

purpose of elucidating the real controversy between the

parties, local investigation commission is necessary.

Accordingly, he has prayed for setting aside the order

impugned.

In this context, he relied upon a judgment of this

court in Santosh Kr. Saha vs. Gita Paul & Ors.

reported in 2001 WBLR (Cal) 729.

Learned counsel appearing on behalf of the opposite

parties submits that the plaintiffs have specifically averred in

their plaint that the defendants have encroached a portion of

their land which is marked as 'Ka' schedule to the plaint.

Now, in order to ascertain, the truthfulness of allegation and

to elucidate the extent of area of 'Ka' schedule property, local

investigation commission is badly needed and as such, the

court below has not committed any wrong in allowing the

said application in order to adjudicate the real controversy

between the parties. Unless suit property is investigated by a

survey knowing commissioner, it would not be proved or

disproved the dispute about encroachment.

In this context, he relied upon a judgment of Apex

Court in the case of Haryana Waqf Board vs. Shanti

Sarup and Ors. reported in (2008)8 SCC 671.

Considered the submissions made by both the parties.

On perusal of the plaint, it appears that the plaintiffs'

specific case is that on 14.02.2012 they have purchased 'Kha'

schedule suit property to the plaint measuring about 59½

decimal by a registered deed of purchase being No.433 and it

is also their specific case that out of that 'Kha' schedule, a

portion of land measuring 3 decimal along with two rooms

and varanda standing therein, which has been mentioned in

the 'Ka' schedule to the plaint, has been encroached by the

petitioners herein, wherefrom plaintiffs have also sought for

petitioners/defendants' eviction. Accordingly, the real

controversy between the parties in the present suit is

whether the defendants/petitioners have encroached 'Ka'

schedule property to the plaint or not and whether 'Ka'

schedule property is part of plaintiffs' purchased 'Kha'

schedule property or not. In order to adjudicate said

controversy between the parties, in the said suit, local

investigation commission is needed. In fact the expression

"local investigation" is wide enough to include localisation

with reference to the documents of title.

The nature of the dispute is such that unless actual

measurement of the property in question comes before the

court, it would not be possible for the court below to

adjudicate controversy effectively and conclusively. The

court which is adjudicating on an issue before it, is the best

judge to decide the need or necessary to appoint a

commissioner.

The case law referred by the petitioners reported in

2001 WBLR (Cal) 729, the question for determination in the

said suit was whether there was any such obstruction on the

disputed land or not. Accordingly, it relates to a local feature

which can very well be ascertained by way of local inspection

commission but the question of alleged encroachment can

never be ascertained from local inspection commissioner's

report. In fact, paragraph 4 of the said judgment makes the

position clear which states, "In local inspection only the

existing condition of the suit property is to be found and

reported but in local investigation elucidation is required

for the purpose of enabling the court to settle a dispute over

a particular portion of the suit property and for that

purpose sometimes measurement and relayment etc. may

be necessary. In case of local inspection the report does not

ipso facto become a part of the record and it has got to be

proved by means of evidence and if it is made an exhibit

being admitted into evidence then and then only it can be

relied upon. But in case of local investigation the position is

quite different. The report of the local investigation

Commissioner becomes a part of the record and unless and

until it is discarded by the Court on the basis of materials on

record it continues to remain so."

In view of above, learned court below has not

committed any mistake in allowing the said application for

local investigation commission and I find no merit in the

present application.

Accordingly, CO 3475 of 2018 is dismissed.

There will be no order as to costs.

Urgent photostat certified copy of this order, if

applied for, be given to the parties upon compliance of all

necessary formalities.

(Ajoy Kumar Mukherjee, J.)