Bhaktipada Mahato & Anr vs Netai Mahato & Ors
2023 Latest Caselaw 7160 Cal

16.10.2023

Item no.20 CP C.O. No. 1369 of 2023

Bhaktipada Mahato & anr.

Vs.

Netai Mahato & ors.

Mr. Soumitra Banerjee Mr. Malay Dhar Mr. Amarnath Sen Mr. Souvik Naskar ......for the petitioners.

The revisional application arises out of a order

dated March 1, 2023, passed by the learned

Additional District Judge Raghunathpur, Purulia in

Title Appeal No. 07 of 2020.

By the said order, the learned court rejected an

application for local investigation filed by the

plaintiffs under Order 26 Rule 9 of the Code of Civil

Procedure. By the said application, the plaintiffs

prayed for local investigation on the following points:-

a) Measurement of the suit plot in

consultation with the mouza map and the

boundary of the property. Preparation of a

sketch map by the investigation

commissioner.

b) Measurement of the suit land as per the

boundaries in the plaint.

c) Existence of 'rasta' on any portion of the

suit plot and if so, the area of the suit plot.

d) Existence of a house on the suit plot,

measurement of the house.

e) Existence of Giridhari Mahato's residential

house on the western side of the pucca

road.

f) Any other point available at the spot.

The learned court came to the following

conclusions:-

a) The measurement of the suit plot in

consultation with the mouza map, would be

available from evidence.

b) The measurement of the suit land on the

basis of the boundary in the plaint and the

sketch map, could be proved on the basis of

the evidence.

c) The existence of a 'rasta' through the suit

plot or the existence of a house on the suit

plot, could be proved on the basis of

evidence both oral and documentary.

Thus, the application was rejected with the

aforementioned reasons. It is also pertinent to record

herein, that a similar application for local

investigation was filed in the suit, which had been

dismissed. The said order reached its finality.

From the judgment and decree it appears that

the learned Civil Judge (Junior Division),

Raghunathpur, Purulia dismissed the Title Suit No.

44 of 2016, inter alia, holding that the evidence, both

oral and documentary, indicated that the suit plot

was an ejmali property under the joint possession of

several co-sharers. Sabitri Devi, Gayatri Devi and

Nibitri Devi, i.e., the vendors of the plaintiffs of 2

decimals, 1 decimal and 1 decimal of land

respectively, but there were many other co-sharers of

the property. The suit for declaration and

consequential relief of permanent injunction was hit

by the proviso to Section 34 of the Specific Relief Act

as the plaintiffs did not seek partition.

The L.R. plot information, which was addcued

as evidence, also indicated the same. The schedule of

the plot of land mentioned by the plaintiffs in their

plaint appeared to be inconsistent with the facts laid

down by them. 1 decimal of land of Sabitri, did not

find any mention. The schedule was vague, indefinite

and the court found that the suit plot No. 436 was in

possession of many co-sharers and measured a total

area of 22 decimals.

The plaint case was that the defendants had

started laying a foundation on the suit property. The

plaint case was not accepted and the court held that

the prayers of the plaintiffs for declaration and

permanent injunction could not be allowed by the

learned court below, without partition.

It is submitted on behalf of the plaintiffs that

local investigation would result in proper

identification of the area of the suit plot, that was

enjoyed by the plaintiffs. The very fact that they were

in possession of the said property, could be brought

on record.

In my view, it is for the plaintiffs to prove their

case. The plaintiffs claim to have purchased a portion

of Plot No. 436 with specific boundaries. They claim

to be in possession of the said specific area in terms

of the deed of conveyance. They alleged that the

defendants had encroached the property and were

excavating earth.

The exact measurement of the suit plot and the

existence of a 'rasta' are matters to be proved by the

plaintiffs on the basis of evidence. Local investigation

is not required in this case as it is not a boundary

dispute. The plaintiffs' case is that they had clear

demarcated boundaries and the defendants had

started digging earth within the area owned,

possessed and enjoyed by the plaintiffs.

Under such circumstances, the revisional

application is disposed of without any interference

with the order impugned.

All points raised in this application, shall be

available to the plaintiffs at the hearing of the appeal.

The learned lower appellate court is directed to

dispose of the appeal within six months from the

next date fixed.

There shall be no order as to costs.

Parties are to act on the server copy of this

order.

(Shampa Sarkar, J.)