Calcutta High Court (Appellete Side)
Smt. Sibani Das (Kapri) vs Sri Somnath Bera & Ors on 29 September, 2023
29.09.2023
Sl. No.5(DL)
srm
C.O. No. 838 of 2023
Smt. Sibani Das (Kapri)
Versus
Sri Somnath Bera & Ors.
Mr. Amal Krishna Saha,
Mr. Amit Bikram Mahata
Mr. Satyajit Mandal,
...for the Petitioner.
Mr. Amitava Pain,
Mr. Partha Pratim Mukhopadhyay
...for the Opposite Parties.
The revisional application arises out of an order dated
January 17, 2023 passed by the learned Civil Judge (Junior
Division), Haldia, Purba Medinipur, in Title Suit No.386 of
2012.
The suit was filed for declaration and mandatory
injunction. The declaration was sought for with regard to an
alleged "Baram Rasta" which the defendants in the suit had
allegedly blocked by raising a boundary wall thereby
obstructing the ingress and egress of the plaintiff. Mandatory
injunction, directing demolition of the wall was prayed for.
The said "Baram" pathway was depicted as A, B and C strip. In
the rough sketch map annexed to the plaint, it appears that the
lands of the plaintiff was on two sides of the pathway (Strip
A). From the sketch map depicted in the application for local
investigation, it appears that the A strip land was reflected
between the Plot Nos.96/430 and 96/431. The allegation in the
plaint is that a boundary wall was constructed on the B strip
land which was towards southern portion of Plot No.96/430.
The obstruction on the B strip land amounted to
blocking the free light and air in respect of the plaintiff's land.
The B strip land, according to the plaint, was on the south-
eastern portion. It was contended that the said pathway had
been recorded in the LR record of rights. It, prima facie,
appears from the entire reading of the plaint that the allegation
is that a boundary wall of 5 ft. height was raised by the
defendants on the B strip and C strip land which were
pathways. The defendants had denied such allegation and had
specifically stated that the description of the A, B and C lands
were vague and indefinite.
In the application, the plaintiff prayed for local
investigation, broadly, on the following points :-
(a) Local investigation of Plot Nos.96/430, 96/431, 96/437
and all surrounding plots.
(b) Location, identification of A, B and C strip plots.
(c) Nature and character of the suit plots.
(d) Measurement by relaying with the RS map from
fixed three points, in order to ascertain the plot
numbers on which A, B and C strip of lands were
situated.
(e) Whether there was any obstruction on the said plots,
by raising a boundary wall.
(f) Relay of A, B and C strip land with more than seven
deeds of conveyance.
Mr. Saha, learned Advocate appearing on behalf of
defendant No.4/petitioner submits that the learned court
below ought not to have allowed such local investigation as
the points on which the same was allowed, amounted to
fishing out evidence. The plaint case was vague and only to fill
up the lacuna, such application had been filed.
Mr. Pain, learned Advocate appearing on behalf of the
opposite party submits that when there was a specific
allegation with regard to blockage of a pathway by raising a
boundary wall and there had been denial to the same in the
written statement, a dispute has been raised which could not
be elucidated, except by a local investigation. Hence, the court
had no other option, but to allow such local investigation for
better appreciation of the disputes.
Reference has been made to the decision of this Court in
the matter of Balaram Ghosh vs. Sharda Devi reported in
2014(1) CHN (Cal) 269.
Having heard learned Counsel for the respective parties,
this Court come to the following conclusion:
(a) The depiction of A, B and C strip of land in the
plaint and in the application for local investigation
differ.
(b) It is for the plaintiff to prove on evidence, that A, B
and C strip of land has been recorded as "Baram"
pathway in the record of rights and the same had
been blocked by the defendants.
(c) The plaintiff is unaware and uncertain with regard to
exact nature, character and location of A, B and C
strip of land.
(d) By allowing the points for local investigation, the
learned court below has permitted fishing of
evidence.
The decision in the matter of Balaram Ghosh (supra)
does not help the plaintiff, inasmuch as, paragraph 6 of the
said judgment clearly indicates that the description of the suit
property being Annexure-Y to the application before the
learned court, clearly depicted separate buildings under lot A
and lot B. The plaintiff purchased lot B with specific length
and breadth. Lot A belonged to the defendants with clear
boundary. The common passage was also depicted with clear
length and breadth. Hence, the Court was of the view that as
the description of the property of the plaintiff before the
learned co-ordinate Bench was clear and there were allegations
of encroachment on the common passage which was clearly
marked in the application, a local investigation was necessary.
In this case, the plaintiff is unaware of the plot numbers
on which allegedly A, B and C strip land is situated. At this
stage, this Court does not find any dispute which requires
further elucidation. The positive plaint case is that A, B and C
strip land has been entered in the LR Record of Rights as a
"Baram" pathway, which was blocked by the defendants. The
plaintiff has to prove this before the learned court below.
Under such circumstances and for the reasons stated
hereinabove, the revisional application is allowed. The order
impugned is set aside.
As the suit is an old one, the learned court below is
directed to expedite the suit and dispose of the same within a
year.
The revisional application is, thus, disposed of.
There shall be no order as to costs.
Parties are directed to act on the basis of the server copy
of this order.
(Shampa Sarkar, J.)
