Gauhati High Court
Moti Kumari And Ors. vs Md. Habibur Rahman on 10 February, 2003
Equivalent citations: (2003)2GLR66
Author: I.A. Ansari
Bench: I.A. Ansari
JUDGMENT I.A. Ansari, J.
1. This revision has arisen out of the order, dated 13.12.2001, passed by the learned Civil Judge (Junior Division), No. 1 Kamrup in TS No. 116/98, rejecting the petitioner-defendants' application made under 0 26 Rule 9 of the CPC seeking local investigation.
2. In a nutshell, material facts and various stages, which have led to the present revision, may be narrated as follows :
(i) The plaintiff-opposite party instituted TS 116/98 aforementioned, his case being, briefly stated, thus : The plaintiff's father, Hafizuddin Ahmed was the owner of the suit land. The plaintiff's father gifted the suit property to the plaintiff and pro forma defendant by executing a Deed of Gift on 8.8.1972 and delivered possession thereof to the donees concerned. The petitioner accordingly became a co-owner of the suit land and, upon amicable partition between the donees concerned, the petitioner became the sole and absolute owner of the suit property. The plaintiff intended to construct his dwelling house on the suit land and with this end in view, a thatched house was built on the suit land by the plaintiff for the purpose of storing his construction materials. The defendant No. 1 took in terms of an oral contract, the suit premises with effect from February 1991 from the plaintiff for keeping her cows for a short period on payment of house rent of Rs. 600 per month. Thereafter, the defendant No. 1 inducted defendant Nos. 2 to 5 and carried on with her business of milk selling by paying rent till December 1993, but defaulted to make payment of due rents thereafter. As the defendant No. 1, in collusion with others, started making preparations to get the holding of the suit property transferred to her own name and also started avoiding the plaintiff, the plaintiff instituted the suit aforementioned seeking, inter alia, decree for eviction of the defendants from the suit land and delivery of vacant possession thereof, recovery of arrear rents, injunction, etc.
(ii) The defendants contested the suit by filing their written statement, wherein it was contended, inter alia, that they were tenants in respect of the land, in question, since the days of plaintiff's father, but the structures standing thereon were owned by them. In short, thus, the defendants' case was that the plaintiff was not the owner of the house standing on the suit land, but the defendants, at the same time, admitted that they were tenants under the plaintiff's father and used to pay agreed rent. It was also contended by the defendants in their written statement that the suit land had already been acquired under the Urban Land Ceiling Act, 1976.
(iii) While the suit was pending, the defendants made an application under Order 26, Rule 9 praying for issuance of Commission for local investigation. Upon hearing learned counsel for the parties, learned Trial Court turned down the prayer for local inspection by its order, dated 13.12.2001, aforestated. It is this order, which stands impugned in the present revision.
3. I have perused the materials on record including the impugned order. I have heard Mr. P.K. Khataniar, earned counsel for plaintiff opposite party.
4. Upon hearing the learned counsel for the parties and upon perusal of the materials on record, what attracts my eyes, most prominently is that the defendants admit that they were tenants in respect of the land under the deceased father of the plaintiff. What the defendants dispute is that the house, which stands on the suit land, was constructed by the plaintiff. According to the defendants, the structures standing on the suit land were constructed by the defendants and belong to them. In other words, while admitting their status as tenants in respect of the suit land, the defendants dispute the factum of tenancy as far as the house or the structures standing on the suit land is concerned. There is absolutely no indication from the written statement of the defendants that the identity of the suit land was disputed and/or questioned by the defendants.
5. Situated thus, I find that the learned trial Court was wholly justified in passing the impugned order declining to appoint Survey Commission for local investigation of the suit land.
6. A suit is decided on the basis of the pleadings and pleadings include the plaint as well as the written statement. Unless the pleadings raise a dispute with regard to the identity of the suit land, question of resorting to appointment of Survey Commission under Order 26, Rule 9 does not arise at all.
7. Mr. Roy Choudhury, learned counsel for petitioners, has not been able to point out anything in the written statement to show that the identity of the suit land and/or of the suit premises was in dispute nor has Mr. Roy Choudhury been able to show that in the face of the pleadings of the parties in the plaint and/or the written statement, appointment of Survey Commission for local investigation was necessary.
8. Thus, the learned trial Court cannot, while passing the impugned order, be said to have refused to exercise the jurisdiction vested in it by law. The impugned order does not, therefore, suffer from any infirmity and cannot be interfered with.
9. In the result and for the reasons discussed above, this revision fails and the impugned order is maintained.
10. In order to ensure expeditious disposal of the suit, the parties to this revision are hereby directed to appear before the learned trial Court, on 10.3.2003, for further necessary orders and the learned trial Court is hereby directed to dispose of the suit in accordance with law expeditiously and preferably within a period of 3 months from the date of receipt of a copy of this judgment and order.
11. No further notice need be served on the parties concerned as this order has been pronounced in the presence of the learned counsel for the parties.
12. No order as to costs.