Calcutta High Court (Appellete Side)
Sri Chandan Biswas & Anr vs Bidyut Parna Ghosh (Biswas) & Ors on 12 October, 2023
Item No. 3
12.10.2023
GB
C.O. 3577 of 2022
Sri Chandan Biswas & Anr.
Vs.
Bidyut Parna Ghosh (Biswas) & Ors.
Mr. Samrat Das
... for the Petitioners.
The revisional application arises out of an order dated
August 31, 2022 passed in Title Suit No.32 of 2016. By the
order impugned, the learned Civil Judge (Junior Division),
2nd Court at Basirhat rejected an application for local
inspection. Such application was filed when the cross-
examination of P.W.1 was going on.
According to the learned court, the plaintiffs were the
dominus litis and it was for the plaintiffs to prove their right,
title and interest in respect of the suit property. The
defendants had a rival claim in respect of the suit property
and in their written statement it had been categorically
stated that the defendants had the right, title, interest and
possession of the suit property and they were residing in the
suit property since long. They had also made substantial
construction on the same.
According to the learned court, the real picture of the
property was not necessary to be brought on record as both
parties had rival claims to the suit property, on the basis of
their individual records. The onus was on the plaintiffs to
prove the plaint case. Thus, allowing any local inspection at
the behest of the defendants, in my opinion, would amount
to fishing out evidence. The question of who was in
possession, how the party in possession was enjoying the
property, are all matters of trial.
The decision of the Kerala High Court, cited by Mr.
Das, learned advocate for the petitioners in the matter of
John versus Kamarunnissa reported in AIR 1989 Ker
78, does not aid the petitioners as the judgment is on the
issue of local investigation under Order 26 Rule 9 of the Code
of Civil Procedure. Unless there is a boundary dispute and
demarcation is necessary, local investigation is usually not
granted. The petitioners on the other hand prayed for local
inspection under Order 39 Rule 7 of the Code of Civil
Procedure.
The decision of the Madras High Court in the matter
of Subbae Gounder versus Palanathal reported in AIR
1969 Mad 204 also does not help the petitioners as, the
facts are distinguishable. Rather, in the said case the Madras
High Court held that the court did not have any jurisdiction
to issue a commission on matters which were beyond the
subject matter of the suit.
Under such circumstances, this Court does not find
any reason to interfere with the order impugned. The order
impugned is upheld. The plaintiffs will have to prove their
right, title and interest in respect of the suit property and if
the plaintiffs discharge such onus, the defendants would
have to establish their own case and the issues raised by both
the parties shall be decided on the basis of the oral and
documentary evidence.
Accordingly, the revisional application is disposed of.
All the parties are directed to act on the basis of the
server copy of this order.
(Shampa Sarkar, J.)
