Calcutta High Court (Appellete Side)
Prafulla Sadhukhan vs Bechuram Sadhukhan on 19 July, 2010
Author: Kanchan Chakraborty
Bench: Kanchan Chakraborty
1 IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION (APPELLATE SIDE) PRESENT :
The Hon'ble Justice Kanchan Chakraborty C.O. No. 1115 of 2006 Prafulla Sadhukhan Versus Bechuram Sadhukhan For the petitioner : Mr. Probal Kr. Mukherjee, Ad.
Mr. Sukanta Chakraborty, Ad. For the Opposite party : Mr. Pinaki Ranjan Mitra, Advocate Heard On : 15.7.2010 Judgement On : 19.7.2010 Kanchan Chakraborty, J:
1) This revision application is filed at the instance of the petitioner/plaintiff against the order no. 35 dated 10.1.2006 passed by the learned Civil Judge, Junior Division, 7th Court at Howrah in Title Suit no. 121 of 2002. 2
2) The petitioner instituted the above mentioned suit in respect of 10 dc. of land appertaining to Dag No. 329 (previous Dag No. 604) under Khatian No. 446 of Mouza - Pratappur praying for declaration his right, title and interest in the property and permanent injunction against the opposite parties restraining them from interfering with his lawful possession over the suit property and restraining them from encroaching upon the suit property.
3) The opposite party as defendant appeared in the suit property and filed written statement. The petitioner filed an application under Order 26 Rule 9 of the Civil Procedure Code praying for appointment of a Commissioner to hold local investigation of the suit property on the ground that the opposite parties had encroached upon the suit property illegally and raised construction. That prayer was opposed by the opposite party who denied all the allegations put forth against him by the petitioner. The learned Court by the order impugned, rejected the prayer of the petitioner on the ground that since amendment of the plaint was made, there was no scope to allow the application under Order 26 Rule 9 of the Civil Procedure Code.
4) Being dissatisfied with the said order this revision application has been filed mainly on the ground that the learned Court failed to appreciate the fact that the petitioner although filed a suit for declaration of title, he prayed for permanent injunction on the ground of encroachment. The point to be decided in this revision is whether the order impugned is sustainable in law.
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5) Mr. Probal Kumar Mukherjee, the learned Advocate appeared on behalf of the petitioner contended that reliefs prayed for by him in the suit was not only for declaration his title and interest in the suit property but also for permanent injunction restraining the opposite parties from disturbing his possession by way of encroaching upon the disputed 10 dc. of land. Since there is a substantial case of encroachment, it is necessary to hold a local investigation of the suit property so that actual state of fact can be placed before the Trial Court which will help the Court in coming into proper and right decision.
6) Mr. Pinaki Ranjan Mitra, the learned Advocate appeared on behalf of the opposite party contended that the suit filed by the petitioner is virtually a suit for declaration simplicitor and for permanent injunction. He contended that no case of encroachment has been made out in the plaint by the petitioner. So, the learned Court was right in rejecting the prayer.
7) On careful perusal of the copy of plaint, petition under Order 26 Rule 9 of the Civil Procedure Code and written objection thereto, I find that the parties to the suit are having properties situated adjacent to each other. They acquired the property by way of series of partitions. It appears also that there is a case of encroachment upon the suit property and the petitioner has prayed for permanent injunction to restrain the opposite party from encroaching upon the suit land. It is settled principle of law that to find out the encroachment of the plaintiff's land by way of construction put up by the defendant, it is necessary to issue commission. Even in a 4 case where the extent of encroachment is not clear, a Commissioner can be appointed to measure the extent of encroachment so that Court can got a clear picture of the actual state of fact. Learned Court rejected the prayer for commission on the ground that scheduled of encroached area has not been mention in the petition. I find that the reason assigned by the learned Court is not sufficient enough to ignore the case made out by the petitioner in the plaint as well as the petitioner under Section 26 Rule 9 of Civil Procedure Code in respect of alleged encroachment. While there is a claim and a counter claim regarding the property in dispute and a question raised about encroachment of the suit property it would have been proper for the learned Trail Court to allow the prayer for commission for the purpose of ascertaining fact and proper adjudication of the dispute.
8) In the premises above, I set aside the order.
9) The revision succeeds and is disposed of.
10) Interim stay order, if any, be vacated.
11) No order as to costs.
(Kanchan Chakraborty,J)
Later on :
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Urgent Photostat certified copy of the judgment, if applied for, be handed over to the parties on compliance of necessary formalities.
(Kanchan Chakraborty,J)