Page No.# 1/3 vs Nandita Bora
2021 Latest Caselaw 3408 Gua

                                                                    Page No.# 1/3

GAHC010161142019




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : CRP(IO)/212/2019

            SYED ARIFUL ISLAM AND ANR.
            S/O. SRI ALLAUL ISLAM, R/O. WARD NO. 2, BIHPURIA NAGAR, MOUZA
            AND P.S. BIHPURIA, DIST. LAKHIMPUR, ASSAM- PRESENTLY RESIDING AT
            WARD NO. 14, TOWN BANTOU, NORTH LAKHIMPUR, MOUZA-
            LAKHIMPUR, P.S. NORTH LAKHIMPUR, DIST. LAKHIMPUR, ASSAM.

            2: SYED ATIFUL ISLAM
             S/O. SRI ALLAUL ISLAM
             R/O. WARD NO. 2
             BIHPURIA NAGAR
             MOUZA AND P.S. BIHPURIA
             DIST. LAKHIMPUR
            ASSAM- PRESENTLY RESIDING AT WARD NO. 14
            TOWN BANTOU
             NORTH LAKHIMPUR
             MOUZA- LAKHIMPUR
             P.S. NORTH LAKHIMPUR
             DIST. LAKHIMPUR ASSAM

            VERSUS

            NANDITA BORA
            W/O. LT. BUDDHINATH BORA, WARD NO. 14, TOWN BANTOU, MOUZA-
            LAKHIMPUR, P.S. NORTH LAKHIMPUR, DIST. LAKHIMPUR, ASSAM, PIN-
            787001.


Advocate for the Petitioner   : MR. M SARMA

Advocate for the Respondent : MR. T J MAHANTA


                                   BEFORE
                  HONOURABLE MR. JUSTICE PARTHIVJYOTI SAIKIA
                                                                                Page No.# 2/3


                                       JUDGMENT

Date : 10-12-2021

Heard Mr. M. Sarma, learned counsel appearing for the petitioners as well as Mr. B. S. Deka, learned counsel for the respondent.

2. This is an application under Article 227 of the Constitution of India whereby the order dated 18.06.2019 passed by the Civil Judge, Lakhimpur, North Lakhimpur in T.S. 09/2017 is put to challenge.

3. The factual matrix given rise to this petition lies within the short campus-

The petitioner filed a suit being T.S. 09/2017 against the respondent. It was pleaded therein that the respondent has been illegally possessing a plot of land measuring 2 kathas 7 lechas covered by dag no. 418 and PP No. 11 of North Lakhimpur Town (Part-IV) under Lakhimpur mouza in the district of Lakhimpur. In order to prove the fact, the petitioner examined some witnesses including one Lot Mandal who stated in his evidence that without spot verification, the identity of the suit land as well as the land of the respondent could not be ascertained. Therefore, the petitioner filed an application under Order 26 Rule 9 of the CPC praying for issuing a Commission for making local investigation. The said petition was dismissed by the impugned order.

4. The primary reason for dismissal of the aforesaid application, as is evident from the impugned order, is that the petitioner in another occasion in the Court below claimed that the respondent has been occupying 1 bigha 7 lechas of land including the aforesaid 2 kathas 7 lechas of land of the petitioner but the said fact has not been pleaded in the plaint of the petitioner. The learned Court below further held that an issue has been framed to decide as to whether the respondent has been actually occupying the land of the petitioner and on that issue, both sides have adduced evidence and, therefore, there is no necessity of issuing any Commission, as prayed for by the petitioner.

5. I have given my anxious consideration to the submissions made by the learned Page No.# 3/3

counsels representing the parties.

6. Local investigation is required for the purpose of elucidating any matter in dispute. It is a settled position of law that Commission issued under Order 26 of the CPC is not meant to collect evidence. But for certain reasons, such a Commission is necessary for elucidating some matters in dispute. In this case, the petitioner while filing the Petition No. 343/2019 had admitted that the respondent has been in possession of 1 bigha 7 lechas of land including 2 kathas 7 lechas of land of the petitioner. While praying for a Commission, the petitioner did not say anything about the fact.

7. The primary duty of the court of law is to resolve the dispute between two persons within the framework of relevant laws. Since the Lot Mandal himself has stated in the evidence that without a spot verification it is not possible to ascertain encroachment of land of the petitioner by the respondent nor it is possible to ascertain the area of land allegedly in possession of the respondent. This Court is of the opinion that oral evidence might not be sufficient to ascertain those facts under the given circumstances of the case. Therefore, a Commission is justified in this case.

8. The reasons given by the trial court while dismissing the prayer of the petitioner are not satisfactory. Therefore, the impugned order is set aside. The trial court is directed to decide the prayer of the petitioner under Order 26 Rule 9 of the CPC afresh.

9. After hearing both sides, the trial court shall pass a fresh order on the petition filed by the petitioner under Order 26 Rule 9 of the CPC within a period of 60(sixty) days from the date of receiving the copy of this order.

10. With the aforesaid directions, this Civil Revision Petition stands disposed of.

JUDGE

Comparing Assistant