Calcutta High Court (Appellete Side)
Md. Sahid Khan @ Sahid Khan & Anr vs Mst. Saira Bibi on 20 February, 2019
Author: Rajasekhar Mantha
Bench: Rajasekhar Mantha
1 20.02.2019
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Item no. 557.
Court No. 14ap C.O. No. 818 of 2018 Md. Sahid Khan @ Sahid Khan & Anr.
Versus Mst. Saira Bibi Mr. Abhisek Banerjee.
...For the Petitioners.
Mr. Gautam Das, Mr. Sandeep Kumar Tiwari.
...For the opposite party.
The revisionists are aggrieved by Order No. 189 dated 1st February, 2018 passed in Title Suit No. 206 of 1989 pending before the learned Civil Judge (Junior Division) 1st Court at Howrah. The revisionists-plaintiffs filed a suit for injunction for restraining the defendant from preventing the plaintiffs to construct a boundary wall on land allegedly belonging to the plaintiffs.
The undisputed fact is a portion of the said land is being claimed by the defendant as having been occupied for well over 30 years and that he has acquired title of the property by reason of adverse possession.
Originally when the suit was filed, an application was made under Order 26, Rule 9 of the Code of Civil Procedure but the same was recalled on 4th July, 2002. 2 After a lapse of 15 years, the plaintiffs made a fresh application under Order 26, Rule 9 of the Code of Civil Procedure in 2009, which the Court found could not be entertained since the earlier order dated 4th July, 2002 by which the earlier investigation commissioner was discharged, was not challenged in appeal.
This Court finds that the plaintiffs' claim and extent of his land is already available in the title deed. There is no need for any investigation in that regard. The extent of land occupied by the defendant either under adverse possession or otherwise is also a question that can be decided on the basis of the documents available on record.
However, it is in the interest of justice that the actual extent of land occupied by the defendant needs to be ascertained by the Court below.
In those circumstances, I am of the view that since the suit has been revived despite the fact that there are numerous laches on the part of the plaintiffs, the extent of occupation by the defendant has to be determined for the purpose of benefit of both sides.
In that view of the matter, the impugned order is set aside.
3
The Court below shall appoint an investigation commissioner only to ascertain the extent of the revisionists' land and the extent occupied by the opposite party- defendant.
It is made clear that this Court has not decided any issue as regards the right, title and interest under the law accruing either the plaintiffs or the defendant.
Since the suit is pending since 1986, it is ordered that the same be disposed of within a period of six months from the date of communication of a copy of the order.
The parties before me undertake not to pray for any adjournment in the Court below.
The suit shall be heard on day to day basis and disposed of as directed hereinabove.
The investigation commissioner's report shall be used by both the parties in course of trial and shall be subject to any challenge as well as examination of the investigation commissioner himself.
It is made clear that the investigation commissioner shall submit his report, within a period of two weeks, from the date of communication of a copy of the order.
With the aforesaid directions, the instant Revisional Application is disposed of.
4
There will be, however, no order as to costs. Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities.
(Rajasekhar Mantha, J.)