Calcutta High Court (Appellete Side)
Sri Rasaraj Mahato & Ors vs Sri Arun Chandra Mahato & Anr on 17 August, 2023
17.08.2023
Sl. No.6(DL)
srm
C.O. No. 593 of 2023
Sri Rasaraj Mahato & Ors.
Versus
Sri Arun Chandra Mahato & Anr.
Mr. Chittapriya Ghosh
...for the Petitioners.
The order dated January 6, 2023 passed in Title Suit
No.473 of 2017 by the learned Civil Judge (Junior Division), 2nd
Court at Purulia, is under challenge in this revisional
application.
By the order impugned, the learned court below rejected
an application under order XXVI Rule 9 of the Code of Civil
Procedure. The learned court below held that in a suit for
declaration of title and permanent injunction, the question of
local investigation would not arise. The case in hand was not
regarding any boundary dispute. Neither was there any
allegation of encroachment. No prayer for recovery of
possession was made. According to the learned court below,
the averments in the plaint did not reflect that there was any
dispute which was required to be elucidated by a local
investigation.
2
The plaint has been perused by this Court. The plaint
case was that the plaintiffs had valid right, title and interest
over the suit land. The defendants did not have any right, title,
interest and possession over the said land. In spite of the same,
the defendants, with ill motive, tried to grab the land of the
plaintiffs and threaten the plaintiffs. The plaintiffs were
apprehensive that the defendants would forcefully take
possession and deprive the plaintiffs' of their right, title and
interest in respect of the schedule land. The plaintiffs were in
actual physical possession of the property and had asserted
their right, title and interest thereon.
The prayers were for declaration of title of the plaintiffs
in the suit land as described in the schedule of the plaint and
for permanent injunction restraining the defendants from
disturbing and interfering in any manner with the possession
of the plaintiffs in the suit land. The defendants filed their
written statement and submitted that they were in possession
of the land in question by construction of a mud house.
Admittedly, neither the plaint case nor the defence case
records that there was any dispute with regard to the
boundary. No allegation of encroachment by the plaintiffs
against the defendants in respect of any schedule land had
been made. The suit was for declaration of right, title and
interest of the plaintiffs and permanent injunction against the
3
defendants. The plaintiffs claim to be in possession of the said
land. Hence, the onus was on the plaintiffs to prove their case.
The application under Order XXVI Rule 9 of the Code of Civil
Procedure was misconceived as in the facts of the case, there
was no requirement for any local investigation to elucidate any
dispute which would throw some light on any particular issue
either with regard to boundaries or with regard to any
encroachment of the land by the defendants or demarcation of
land. Both parties claim right, title, interest and possession in
respect of the property.
The Hon'ble Supreme Court has also considered the
scope of Order XXVI Rule 9 and held that the provision of
Order XXVI Rule 9 is to be invoked if the controversy is
regarding demarcation of the land between the parties.
The Hon'ble Supreme Court in the matter of Haryana
WAQF Board v/s Shanti Sarup and Ors., reported in (2008) 8
SCC 671, has held that if the controversy is regarding
demarcation of the land between the parties, the Court should
direct the investigation by appointing a legal Commission.
Para 4 and 5 of the aforesaid judgment is reproduced as under
:-
"4. Admittedly, in this case, an application was filed under
Order 26 Rule 9 of the code of Civil Procedure which was
rejected by the trial Court but in view of the fact that it was
a case of demarcation of the disputed land, it was
appropriate for the Court to direct the investigation by
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appointing a Local Commissioner under Order 26 Rule 9,
CPC.
5. The appellate Court found that the trial Court did not
take into consideration the pleadings of the parties when
there was no specific denial on the part of the respondents
regarding the allegations of unauthorised possession in
respect of the suit land by them as per Para 3 of the plaint.
But the only controversy between the parties was
regarding demarcation of the suit land because the land of
the respondents was adjacent to the suit land and the
application for demarcation filed before the trial Court was
wrongly rejected."
Order XXVI, Rule 9 of the Code, inter alia, provides that
in any suit in which the Court deems a local investigation to be
requisite or proper for the purpose of elucidating any matter in
dispute, the Court may issue a commission to such person as it
thinks fit directing him to make such investigation and to
report thereon to the Court. Meaning thereby, that it has to be
the satisfaction of the Court that a local investigation is
necessary or proper for the purpose of elucidating any matter
in dispute. This provision is not a tool which is to be permitted
to be used by the parties concerned to create evidence in their
favour.
This Court further finds that points for local
investigation were not sustainable in law. Whether there was a
structure on the suit plot, who were in possession of the suit
plot, whether there were trees on the suit plot and whether
there were any other special features on the suit plot, are not to
be brought on record by way of local investigation.
In my view, the learned court rightly rejected the
application. The application, if allowed, would amount to
fishing out of evidence by the plaintiffs. The same cannot be
encouraged.
The revisional application is, thus, dismissed.
There shall be no order as to costs.
Parties are to act on the basis of the server copy of this
order.
(Shampa Sarkar, J.)
