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SUBHAS MONDAL & ANOTHER V/S MONORANJAN SAMANTA & ANOTHER, decided on Tuesday, March 3, 2015.
[ In the High Court of Calcutta, C.O.No. 1512 of 2012 (Appellate Side). ] 03/03/2015
Judge(s) : SUBRATA TALUKDAR
Advocate(s) : Saptangshu Basu, Ld. Senior Counsel, Ayan Banerjee, Ld. Counsel, Debasree Dhamali, Ld. . S.P. Roy Chowdhury, Ld. Senior Counsel, Amal Krishna Saha, Ld. Counsel, Debnath Mahata, Ld. .
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  "2015 (4) WBLR 268"  ==   ""  







    Constitution of India - Article 227 - Civil Procedure Code - Section 75 Order 1 Rule 10 and Order 26 Rule 9 – Suit for declaration - properties were conveyed respectively to the plaintiff No. 1 and plaintiff No. 2 by their vendor - defendants started making unauthorized construction over Schedule properties - application was filed by the plaintiffs for local investigation - defendants that lands claimed by the plaintiffs are vested to the State - application rejected –Held that there is no whisper in the plaint with regard to the presence of either the State and the another in the suit properties of the plaintiffs - For the first time in their objection to the application the OPs-defendants have taken the plea of the presence of third parties namely the State and another and have sought their impleadment in the suit - when the issue of presence of the third parties has been raised at the stage of hearing  - argument that without the presence of the third parties being ascertained at the threshold no further progress can be made in the application for local investigation cannot be brushed aside - Trial Court shall appoint a local Commissioner – Petition allowed.Case Referred:Haryana Waqf Board vs. Shanti Sarup & Ors. (reported in (2008) 8 SCC 671).     Subrata Talukdar J.In this application under Article 227 of Constitution of India the order impugned No. 14 dated 9th March 2012 passed by the Ld. Civil Court (Junior Division) Garbeta in Title Suit No. 41 of 2010 is under challenge. By the said impugned order No. 14 dated 9th March 2012 the Ld. Trial Court was pleased to reject the application filed by the present petitioners-plaintiffs under Order 26 Rule 9 Code of Civil Procedure (for short CPC). The Ld. Trial Court was pleased to record inter alia that the application under Order 26 Rule 9 CPC was filed by the plaintiffs for local investigation to ascertain whether the lands in ‘ka/1’ ‘ka/2’ and ‘ka/3’ are part and parcel of the land in the trace map annexed with the Sale Deed No. 8102 in favour of the plaintiff No. 1 as also whether the lands in ‘kha/1’ ‘kha/2’ and ‘kha/3’ are part and parcel of the land in the trace map annexed to the Sale Deed No. 8100 in favour of the plaintiff No. 2.Local investigation was also sought to ascertain the nature of construction over ‘ka/2’ ‘kha/2’ ‘ka/3’ ‘kha/3’ spaces of land as also whether ‘ka/1’ ‘kha/1’ are vacant lands or not. The present opposite parties-defendants (for short OPs) objected to the application for local investigation on the ground that out of the lands claimed by the plaintiffs 1.41 acres are vested to the State of West Bengal. It was also contended by the present OPs-defendants that one Ranjit Pal is in possession of a substantial portion of the suit land.However neither the State of West Bengal nor Ranjit Pal have been impleaded as parties to Title Suit No. 41 of 2010. According to the OPs-defendants without making the State of West Bengal and the said Ranjit Pal as parties the plaintiffs cannot pray for local investigation at their sweet will. It is also contended on behalf of the OPs-defendants that no opportunity should be given to the petitioners-plaintiffs to fish for evidence through local investigation.The Ld. Trial Court was of the opinion that it is for the Court to exercise discretion whether local investigation is necessary or not.The object of local investigation is not to collect evidence which can be taken in court but to obtain evidence which can be only ascertained from the spot.The Ld. Trial Court was of the further view that the OPs defendants have raised a specific plea with regard to the necessary impleadment of the State of West Bengal and Ranjit Pal in the suit.The Ld. Trial Court was of the prima facie view that the presence of both the State of West Bengal and Ranjit Pal “are highly required” for adjudication of the application for local investigation. In the absence of either the State of West Bengal or Ranjit Pal complications are likely to arise during adjudication of the application for local investigation.The Ld. Trial Court was also of the view that the object of the application for local investigation is to collect evidence and such design cannot be permitted. Hence the application under Order 26 Rule 9 CPC stood rejected.Sri Saptangshu Basu Ld. Senior Counsel appearing for the petitioners points out that the suit is for declaration mandatory injunction and recovery of possession. Sri Basu further states that both the properties in the ‘ka’ Schedule and the ‘kha’ Schedule were conveyed respectively to the plaintiff No. 1 and plaintiff No. 2 by the their vendor one Nirmalendu Mondal. The defendants purchased some lands adjacent to the lands of the plaintiffs and have started making unauthorised construction over ‘ka/2’ and ‘kha/2’ Schedule properties and are also putting a boundary wall around ‘ka/3’ and ‘kha/3’ Schedule properties.In spite of repeated requests the OPs-defendants have failed to remove the illegal constructions and are steadily encroaching upon the property of the plaintiffs. It thus became necessary to file the instant suit.According to Ld. Senior Counsel in a suit for declaration involving a boundary dispute between the parties it is usual for any court to allow an application for local investigation. Sri Basu further points out that the plaintiffs are claiming their respective lands through their common vendor and in that aspect of the matter neither the State of West Bengal nor the said Ranjit Pal can be said to be necessary parties.Sri Basu further argues that the OPs-defendants have not approached the Ld. Trial Court with any application under Order 1 Rule 10 CPC seeking addition of parties. The Ld. Trial Court is also empowered to add necessary parties in exercise of its powers under the abovenoted provision of the CPC. The opposition of the OPs-defendants to local investigation is only a ploy to prevent the facts on the ground from being placed before the Ld. Trial Court.Per contra Sri S.P. Roy Chowdhury Ld. Senior Counsel distinguishes between an application for local investigation and an application for local inspection. According to Sri Roy Chowdhury in the event the application for local investigation is allowed it will amount to gathering evidence in the suit. Ld. Senior Counsel further submits that one of the cardinal principles of local investigation is that the principal land must be fixed or recognised. He also points out that without the necessary parties being the State of West Bengal and the said Ranjit Pal there can be no local investigation. The question of addition of parties must be decided first prior to ordering local investigation.Having heard the parties and considering the materials on record this Court finds that the power to grant commissions for local investigation is provided under Order 26 Rule 9 CPC. Order 26 Rule 9 CPC reads as follows:-“In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute or of ascertaining the market-value of any property or the amount of any mesne profits or damages or annual net profits the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court:Provided that where the State Government has made rules as to the persons to whom such commission shall be issued the Court shall be bound by such rules.”The power to order commissions vests with the court under Section 75 CPC and reads as follows:-“75) Subject to such conditions and limitations as may be prescribed the Court may issue a commission:-a) to examine any person;b) to make a local investigation;c) to examine or adjust accounts; ord) to make a partition;e) to hold a scientific technical or expert investigation;f) to conduct sale of property which is subject to speedy and natural decay and which is in the custody of the Court pending the determination of the suit;g) to perform any ministerial act]”It is noticed that the language of Order 26 Rule 9 CPC is wide inasmuch as a local investigation may be directed by Court “for the purpose of elucidating any (emphasis supplied) matter in dispute”. It is on record that the dispute between the parties pertains to the allegation of illegal construction including erection of a boundary wall in the suit properties. It is not so far the case of the petitioners plaintiffs that other than the present OPs-defendants their properties are being threatened by any third party. There is no whisper in the plaint with regard to the presence of either the State of West Bengal and the said Ranjit Pal in the suit properties of the plaintiffs. For the first time in their objection to the application under Order 26 Rule 9 CPC the present OPs-defendants have taken the plea of the presence of third parties namely the State of West Bengal and the said Ranjit Pal and have sought their impleadment in the suit.There is merit in the argument of Sri Basu that it was all along open to the present OPs-defendants to apply before the Ld. Trial Court for addition of parties under Order 1 Rule 10 CPC.On the other hand when the issue of the State of West Bengal and the said Ranjit Pal being in the possession of a substantial portion of the suit properties has been raised at the stage of hearing of the Order 26 Rule 9 application the argument of Sri Roy Chowdhury that without the presence of the said third parties being ascertained at the threshold no further progress can be made in the application for local investigation cannot also be brushed aside.In Haryana Waqf Board vs. Shanti Sarup & Ors. (reported in (2008) 8 SCC 671) the Hon’ble Apex Court held at Para 4 as follows:-“4) Admittedly in this case an application was filed under Order 26 Rule 9 of the Code of Civil Procedure which was rejected by the trial court but in view of the fact that it was a case of demarcation of the disputed land it was appropriate for the court to direct the investigation by appointing a Local Commissioner under Order 26 Rule 9 CPC.”In the light of the abovenoted dismission this Court finds it appropriate to direct that the Ld. Trial Court shall appoint a local Commissioner under Order 26 Rule 9 CPC and seek a preliminary report from the Ld. Commissioner with regard to the status of the suit property its demarcation and encroachments if any and in the event such report testifies to the truthfulness of the contention of the present OPs-defendants with regard to the presence of the State of West Bengal and the said Ranjit Pal in the suit properties either party shall be at liberty to take steps for impleadment and the Ld. Court will then proceed in accordance with law if necessary by calling for a further report from the Commissioner. Alternatively if no third party interest is reported in the suit properties the Ld. Trial Court shall proceed to determine the issues in the suit raised inter se the parties.With the above directions the Order impugned dated 9th March 2012 is set aside and CO 1512 of 2012 stands allowed.There will be however no order as to costs.Urgent Xerox certified photocopies of this judgment if applied for be given to the parties upon compliance of all requisite formalities.