Calcutta High Court (Appellete Side)
Smt. Namita Rani Jana vs State Of West Bengal & Ors on 20 September, 2010
IN THE HIGH COURT AT CALCUTTA
CIVIL REVISIONAL JURISDICTION
C.O. No. 959 of 2008
Smt. Namita Rani Jana
-vs-
State of West Bengal & Ors.
Mr. Nirmal Kumar Manna,
Mr. Kamal Krishna Manna. ... for the petitioner.
Heard on : 20-09-2010
Judgement on : 20-09-2010
Mrinal Kanti Sinha, J.
Heard learned Advocate for the petitioner. None appears on behalf of the opposite parties in spite of repeated calls.
This revisional application has been directed against the order no. 22 dated 22-02-2008 passed by the learned Civil Judge, (Senior Division), Ghatal, in Title Suit No. 27 of 2006 whereby the learned Civil Judge (Senior Division), Ghatal, has rejected the prayer of the petitioner/plaintiff for local investigation.
It appears that the petitioner/plaintiff filed an application on 20-07-2007 praying for local investigation of the suit land for ascertaining the actual area of the suit land in relation to R.S. or C.S map and for ascertaining whether there were two rooms pucca house in a portion of suit plot No. 7260 (L.R. 9860) and for ascertaining the length and breadth of the said pucca house on the ground mentioned in the petition.
But the said prayer of the petitioner/plaintiff for local investigation of the suit land was rejected by the learned Civil Judge (Senior Division), Ghatal, by the impugned order dated 22-02-2008.
Being aggrieved by and dissatisfied with the aforesaid order of the learned Civil Judge (Senior Division), Ghatal, dated 22-02-2008, the petitioner/plaintiff has filed this revisional application.
2The opposite parties/defendants neither have appeared nor have filed any affidavit-in-opposition.
It is to be considered as to whether the learned Civil Judge (Senior Division), Ghatal, was correct and justified in passing the impugned order dated 22-02-2008 or not.
Mr. Manna, learned Advocate for the petitioner/plaintiff, has submitted that the suit land bearing No. 7260 (R.S) and 9860 (L.R) of Mouja Chaipat has an area of .04 decimals as described in the schedule "Ka" in the plaint. But mistakenly .02 decimals of land of the suit plot has been recorded in the name of the opposite party/defendant, Panchu Gopal Pandit and the petitioner/plaintiff got .02 decimals of the suit plot by registered Deed of Exchange on 29-07-2004 while she purchased .02 decimals land of suit plot and .02 decimals land of the suit plot was sold by Panchu Gopal Pandit to the opposite party nos. 3 to 5. But in spite of several representations made by the petitioner/plaintiff to the opposite party no.2, the Block Land and Land Reforms Officer, Daspur-II at Sonakhali, P.S. Daspur, did not take any step for correction of the wrong entry in the L.R. Record of right and so for ascertaining the actual area of the said land in question by physical verification, such local investigation is necessary for proper adjudication of the matter as the private opposite party was trying to occupy .04 decimals land of the suit plot though they purchased .02 decimals of the same only.
After hearing the learned Advocates for the parties, learned Civil Judge (Senior Division), Ghatal, rejected the prayer of the petitioner/plaintiff for local investigation on the ground that the prayer for local investigation was, in his opinion, an effort on the part of the petitioner/plaintiff to kill the time.
The observations of the learned Civil Judge (Senior Division), Ghatal, reads like this :-
"Having consideration of the contentions of both the parties and also carefully going through the local investigation petition, objection against that application and also the written statement filed by the defendants, it appears that the defendant by filing written statement admits the area of the suit property which is measuring about 4 decimals. It is the case of the defendants that they purchased the suit property entirely from the vendor while the plaintiff claims that after transfer to the defendant he purchased 2 decimals from the said vendor. Here the dispute between plaintiff and defendant only over the issue whether the vendor transferred the entire plot to the defendant or partly to the defendant or partly to 3 the plaintiff. There is no dispute relating to the area of the suit property. As there is no dispute relating to the area of the suit property, I think the investigation for ascertainment the actual area of the suit plot is nothing but a wastage of time. Moreover, issues in the instant suit has already been framed. The stage of discovery and inspection has also already observed. At this stage the prayer for local investigation is in my opinion is an effort on the part of the plaintiff to kill the time.
Therefore, considering above all these aspects the prayer for local investigation dated 25-5-07 is considered and rejected.
Fixing 11.3.2008 for P.H. Plaintiff is directed to file examination-in-chief with affidavit on the date fixed positively."
It is an established principle of law that the purpose of local investigation is to obtain such evidence which from its peculiar nature can only be had on the spot with a future elucidation of any point which is left doubtful on the evidence produced before the court. The Court can also issue local commission suo motu if on the facts and circumstances of the case it is deemed necessary that a local investigation is required and is proper for the purpose of elucidating any matter in dispute under order 26 Rule 9 of the Code of Civil Procedure, and the Court can appoint a commissioner at any stage of the suit where it deems a local investigation to be requisite for the purpose of elucidating any matter in dispute, and the object of the local investigation under order 26 Rule 9 of the Code is to obtain evidence which from its peculiar nature can best be had from the spot itself and such evidence enables the court to properly and correctly understand and assess the evidence on record and it clarifies or explains any point which is left doubtful on the evidence on record.
The provision of Order 26 Rule 9 of the Code of Civil Procedure which deals with Commissions to make local investigations reads thus :-
"9. Commissions to make local investigations.-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."4
In the instant case, it appears that the learned Civil Judge (Senior Division), Ghatal, has found that admittedly the area of the suit property is 4 decimals but it was the case of the opposite parties/defendants that they purchased the entire suit property from the vendor while the plaintiff/petitioner claims that after transfer to the private opposite parties/defendants, the petitioner/plaintiff purchased 2 decimals from the said vendor and the dispute between the parties was whether the vendor transferred the entire land of the suit plot to the private opposite parties/defendants or part of it to the plaintiff and there is no dispute relating to the area of the suit property, but as per the submission of the learned Advocate for the petitioner/plaintiff the total area of the suit plot is 6 decimals and the petitioner/plaintiff got 4 decimals land by exchange and by purchase, which has been mentioned by the petitioner/plaintiff in her revisional application also.
So, for ascertaining the actual area of the suit plot as well as for ascertaining its peculiar nature and actually who has how much area therein as well as for elucidating those points a local investigation or verification of the spot by local investigation was necessary for the ends of justice.
Further, it appears that though the Civil Judge (Senior Division), Ghatal, has made his observations that "as there is no dispute relating to the area of the suit property, I think the investigation for ascertainment the actual area of the suit plot is nothing but a wastage of time", yet he has not made any observation nor has he made any finding regarding the prayer of the petitioner/plaintiff for ascertaining as to whether there is any two roomed pucca house in a portion of the suit plot or not, and what was the length and breadth of the said pucca house. This shows that the learned Civil Judge (Senior Division), Ghatal, had no proper application of mind regarding the prayer of the petitioner/plaintiff by her application for local investigation, and the learned Civil Judge (Senior Division), Ghatal, ought to have made some observation regarding the said prayer of the petitioner/plaintiff by the said petition for local investigation. Moreover, the opposite parties/defendants will not also be prejudiced in any way if such local investigation of the suit land is made entirely at the cost of the petitioner/plaintiff.
Having regard to the submissions of the learned Advocate for the petitioner, materials on record and other circumstances, it appears that the learned Civil Judge (Senior Division), Ghatal, was not correct and justified in rejecting the aforesaid application of the petitioner/plaintiff without considering 5 the prayer of the petitioner/plaintiff by her petition for local investigation on the points mentioned therein and by observing that for ascertainment of the actual area of the suit plot was nothing but wastage of time and by not making any finding regarding the prayer of the petitioner/plaintiff for ascertaining as to whether there was any two roomed pucca house in a portion of the suit plot or not or what was the length and breadth the said pucca house. Consequently there was failure of justice.
As such, the impugned order of the learned Civil Judge (Senior Division), Ghatal, cannot stand and should be interfered with.
Accordingly, the C.O. No. 959 of 2008 is allowed. The impugned order dated 22-02-2008 passed in Title Suit No. 27 of 2006 by the learned Civil Judge (Senior Division), Ghatal, is hereby set aside with a direction upon the learned Civil Judge (Senior Division), Ghatal, to re-consider the prayer of the petitioner/plaintiff for local investigation of the suit plot entirely at the cost of the petitioner/plaintiff, which shall not be the cost of the suit.
There shall, however, be no order as to costs.
Copy of this order be sent to the learned Civil Judge (Senior Division), Ghatal, immediately for his information and necessary compliance.
Urgent xerox certified copy of this order, if applied for, be given to the parties expeditiously.
(Mrinal Kanti Sinha, J.)