Arbind Bhattacharya & Ors vs Balaram Modak & Ors

Subhasis Dasgupta, J

The impugned order No. 126 dated 09.03.2018 passed by the learned Civil Judge (Junior Division) 3rd Court, Burdwan in Title Suit No. 9 of 2014 rejecting an application under Section 151 of the Code of Civil Procedure, praying for repairing of two rooms, situated in the schedule property, is the subject of challenge in this revisional application under Article 227 of the Constitution of India.

In connection with a suit registered as Title Suit No.9 of 2014, instituted by the plaintiff, praying for declaration of title and permanent injunction, based on the claim of adverse possession, defendants/petitioners filed a petition dated 26.07.2016 praying for undertaking repairing work of one Asbestos sheded room, situated in the western side of the suit property and one "Goalghar" situated in the eastern side of the suit property for its dilapidated condition on the ground of ensuing monsoon, which was rejected by the court below, holding that the property in respect of which, the repairing was sought for belonged to plaintiffs/opposite parties. The suit property was subjected to Local Inspection Commissioner, and the report of such Commissioner was furnished in the court below. Since defendants/petitioners failed to produce any documents transpiring their right, title and interest to repair the rooms in question, the court below was not prepared to accept the prayer for repairing, and accordingly rejected the same.

Learned advocate for the petitioners submitted that learned court below failed to exercise its authority forgetting the fact that the defendants/petitioners are the true/real owners of the suit property, and the plaintiffs/opposite parties raised their claim in the suit seeking declaration on the basis of their claim of adverse possession. Thus pending adjudication of the rights of the parties, the learned court below ought to have granted the prayer for repairing of the damaged two rooms for the same being dilapidated and worn-out bearing in mind that against true owners like defendants, the plaintiffs/opposite parties attempted to establish the claim of adverse possession, and sought for a declaration accordingly on the basis of their alleged claim of adverse possession.

The only point to be addressed by this court is whether, the court below was justified in rejecting the prayer for repairing or not.

Admittedly in connection with the suit for declaration and injunction, based on adverse possession, plaintiffs/opposite parties sought for declaration, and injunction against the defendants, who were presumably the true owners of the suit property involved in this case.

The opposite parties/plaintiffs claimed their uninterrupted possession in respect of the suit proper since 1st Ashwin 1370 B.C, in connection with a claim based on adverse possession. The suit property was described to be bounded by split bamboo wall having one asbestos sheded room, and another mud built tin sheded cow shed, the possession of which was disputed by the defendants/petitioners, and in the interest of determination of such issue, as raised in the averments contained in the plaint, a prayer for local inspection was made by the plaintiff, and report of learned Inspection Commissioner was submitted accordingly.

A Second Inspection was held at the instance of the defendants covering other points and report dated 16th September, 2015 was accordingly submitted therefor.

Upon perusal of the Second Commissioner's report, it appears that there is one asbestos sheded eastern side facing room situated in the western side, having eight (8) pillars with split bamboo wall. There is an another tin sheded cow shed situated in the eastern side of the suit property. So the cow shed was conspicuously described to be situated in the eastern side of the suit property in the Second Commissioner's report, while asbestos sheded room was shown to be situated in the western side of the suit property.

From the Commissioner's report, held for the first time in connection with this case, it appears that there is existence of an asbestos sheded room in the suit property containing some articles connected with cultivation work, while the tin sheded old cow shed was claimed to be under possession of the defendants/petitioners, the possession of which was disputed by plaintiffs/opposite parties.

There is nothing available in either of these two learned Inspection Commissioner's report that the two rooms proposed to be repaired needed immediate repairing for their present pitiable condition being worn-out. The only information available in the Commissioner's report is that the cow shed in suit property has become old one. The first Commissioner's report relied upon by both the parties, is thus devoid of furnishing the extent of damage, if therebe any suffered by the two rooms requiring immediate repairing. What is conspicuously revealed in the first learned Commissioner's report is that both parties sought to establish their respective claim of possession in the suit property instrumentalising the existence of cow shed, what is a disputed question of fact. Since the suit is pending for adjudication of the rights of the plaintiffs claiming their right, title and interest on the basis of claim of their adverse possession in respect of the suit property, in reference to which the defendants claiming themselves to be the real owners of the suit property claimed their right, title and interest over the self same suit property, the prayer for permission to undertake the requiring work of the two proposed rooms may invite complication ultimately and there is chance of multiplicity of the proceedings. The claim and counter claim of possession over cow shed, by the parties to this case, being a disputed question of fact, allowing permission of repairing for the proposed rooms is not encouraging one at this stage. Upon consideration of the rival submission of the parties, the court finds nothing convincing to interfere with the order impugned.

The revisional application being thus without any merits, the findings contained in the impugned order would must go unaltered.

Learned Civil Judge (Junior Division) 3rd Court, Burdwan is directed to dispose of the suit as expeditiously as possible, giving sufficient opportunity of hearing to either of the parties to this case, without granting unnecessary adjournment, unless it is avoidable,

Petitioner is directed to make communication of this order to the learned court below.

The revisional application fails and accordingly stands disposed of .

Urgent certified copy of this order and judgment, if applied for, be given to the appearing parties as expeditiously as possible upon compliance with the all necessary formalities.