Calcutta High Court (Appellete Side)
Smt. Maya Rani Pal @ Maya Pal vs Sri Ganesh Koiri & Ors on 6 August, 2024
Author: Biswajit Basu
Bench: Biswajit Basu
S/L 6
06.8.2024
Court No.19
SD
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
CO 2643 of 2024
Smt. Maya Rani Pal @ Maya Pal
Vs.
Sri Ganesh Koiri & Ors.
Mr. Amal Krishna Saha
Mr. Samir Kumar Chaki
... for the Petitioner.
The instant application under Article 227 of the
Constitution of India is directed against the Order No.190
dated June 06, 2024 passed by the 1st Court of learned
Civil Judge (Junior Division) at Barrackpore, District: 24
Parganas (North) in Title Suit No.67 of 1998.
The petitioner and the opposite party no.1 had
filed two suits for declaration of their right, title, interest
over the properties described in the schedule appended to
the plaint of the said suits which were heard analogously.
The suit filed by the petitioner being T.S. No.67 of 1998
was dismissed and the suit filed by the opposite party no.1
being T.S. No.30 of 1998 was decreed.
The petitioner had challenged the said two decrees
in two appeals being T.A. No.19 of 2013 & T.A. No.20 of
2013 which were allowed by remanding the suits to the
learned Trial Judge after setting aside the impugned
judgments and decrees with a direction to decide the
application under Order VI Rule 17 of the Code of Civil
Procedure filed by the petitioner in one of the appeals and
if the same is allowed, parties were granted liberty to
adduce further evidence.
2
The said application for amendment was allowed,
and thereafter the petitioner in his suit had filed an
application under Order XXVI Rule 9 of the Code for
investigation of the suit properties of the said suit on the
following points:-
1.
To peruse and inspect the title deeds and other
relevant title related documents of A and C
schedule property mentioned in plaint, copy of
plaint will be annexed herewith the writ, from
both the parties.
2. To take actual measurement of A and C
schedule property.
3. To take note on the construction of sunshed
and room on the southern side of A schedule
property and after taking measurement
report that whether such sun shed and room
has been constructed leaving statutory side
space or not.
4. That to inspect and report whether the privy
and bath has been constructed by defendant
violating the provision of statutory side space
and encroaching A schedule property.
5. To take measurements as to the extent of
encroachment in schedule A property of the
plaintiff.
6. Local features
7. Sketch map
The learned Trial Judge by the order impugned
has dismissed the said application holding that since the
re-trial of the suit is on the basis of an order of close
remand, the investigation of the suit property as prayed
for cannot be allowed.
Mr. Saha, learned advocate for the petitioner
submits that the order of remand is not restricted to any
particular issue; therefore the learned Trial Judge has
committed error of law and fact in treating it as an order
of close remand and in dismissing the application for local
investigation on the said ground.
Heard Mr. Saha, perused the materials-on-record.
The order of remand does not indicate that the
suits have been remanded for trial on some framed issues,
therefore the said order does not possess the character of
an order of remand under Order XLI Rule 25 of the Code,
rather the said order indicates that it is an order under
Order XLI Rule 23 thereof.
Be that as it may, it appears from the record that
the petitioner is claiming to be the owner of the property
described in Schedule C appended to the plaint of T.S 67 of
1998 which is part of Schedule A thereof. The petitioner by
the proposed investigation sought to demonstrate that the
defendant of the said suit has encroached upon his land.
The description of the said Schedule A and C
property are available on record. The petitioner has
alleged in the plaint that there is a common passage
between his land and the land of the opposite party no.1
which the defendant has encroached upon. The
description of the said passage is available from the
records; the dispute is not in respect of the existence of
such passage, but user of it, which cannot be ascertained
by local investigation.
For the purpose of determination of the extent of
title of the petitioner in said Schedule A property, the local
investigation as prayed for is also not necessary as the
same would be determined on the basis of evidence to be
adduced by the parties in course of trial of the suit.
The alleged encroached portion of the said
Schedule C property has been described under Schedule D,
as such, to ascertain the extent of encroachment, the
investigation as prayed for is also not necessary.
This Court though does not endorse the reasoning
of the order impugned, but the conclusion being correct, is
not inclined to interfere with it.
CO 2643 of 2024 is dismissed with the above
observations without any order as to costs.
Parties to act on the server copy of this order duly
downloaded from the official website of this Court.
Urgent Photostat certified copies of this order, if
applied for, be supplied to the parties upon compliance
with all requisite formalities.
(Biswajit Basu, J.)
