Rev. Dipankar De vs Banarasi Prasad Gupta and Others

Dipankar Datta, J.—A deed of lease was executed on September 30, 1994, valid for 99 years, in pursuance whereof the opposite party No. 1 was granted lease in respect of a property, measuring more or less 1744 sq. ft., at No. 16, Beniapukur Road, Kolkata-700014. It is not in dispute that in due course of time, the leasehold property has been remembered 16/1, Beniapukur Road, Kolkata-700014.

Title Suit No. 318/2006 was instituted by the opposite party No. 1 (hereafter the Plaintiff) against several Defendants, including the Petitioner herein, before the learned Civil Judge (Junior Division), 2nd Court at Sealdah praying for declaration and injunction. The plaint refers to ''A'', ''B'' and ''C'' schedule properties. Declaration was sought for to the effect that ''A'' and ''B'' schedule properties have been granted on lease to the Plaintiff and the Defendants have no authority to disturb the Plaintiff''s peaceful possession and enjoyment thereof in any manner whatsoever. Based on the allegation in the plaint that the Defendants were raising construction on ''C'' schedule property encroaching a portion of ''B'' schedule property, mandatory injunction was prayed for to restrain the Defendants from raising construction on ''C'' schedule property until and unless encroached portion of ''B'' schedule property is excluded or released from the building plan, illegally obtained.

For better appreciation of the issue involved in this application schedule ''B'' and ''C'' properties, referred to above, are set out herein below:

Schedule ''B''

all that land measuring about 43'' x 12'' to the east of the ''A'' schedule property detached from the building together with an area of 6''8" x 5''5" to the North East at 16/1, Beniapukur Road, being the part and parcel of ''A'' schedule property with the underground water reservoir, water line, sewarage, drainage, telephone and electricity of the premises No. 16/1, Beniapukur Road, P.S. Beniapukur, Kolkata-700014. The whole are more or less 368 sq.ft.

Schedule ''C''

All that land measuring 6742.623 sq.ft. a little more or less together with building under construction at premises No. 16 , Beniapukur Road, P.S. Beniapukur Kolkata-700014, District 24- Parganas (South).

The Plaintiff had filed an application under Order XXVI Rule 9 of the CPC (hereafter the Code) praying for local investigation. The said application was rejected by the learned trial Judge by an order dated May 4, 2007.

Feeling aggrieved thereby, the Plaintiff approached this Court in its revisional jurisdiction by filing an application under Article 227 of the Constitution (registered as C.O. 2359 of 2007). Upon a contested hearing, the said application was allowed. The impugned order was set aside. The learned Judge of the trial Court was directed to appoint a Commissioner for local investigation for the purpose of ascertaining (i) whether the ''B'' schedule property is part and parcel of the ''A'' schedule property or not; (ii) whether any encroachment on the leasehold property, covering 1744 sq. ft., has been made or not; and (iii) whether construction has been made over the ''B'' schedule property or not. The directions were made primarily for the purpose of ascertaining the fact as to whether any encroachment of the leasehold property covering 1744 sq. ft. had been made or not by the Defendants while raising construction on ''C'' schedule property.

In compliance with the aforesaid order, the learned Judge appointed one learned advocate as Commissioner for conducting local investigation.

The Commissioner had been to the locale for preparing her report of local investigation. She intended to survey ''C'' schedule property for ascertaining whether any portion of ''B'' schedule property had been encroached or not. The Defendants in the suit raised objection as a result whereof the Commissioner could not prepare her report.

On or about June 7, 2010, the Defendants filed a petition before the trial Court claiming, inter alia, the following order:

It is therefore prayed that considering the urgency of the matter and the gravity of the case, your Honour may be pleased to direct the Ld. Commissioner to complete the commission work as directed by the Ld. Court excluding the survey of Premises No. 16, Beniapukur Road the alleged ''C'' schedule property as mentioned in the plaint which has not been directed by the Ld. Court and/or to pass such other order/orders as your Honour may deem fit and proper.

At or about the same time, the Commissioner also filed a petition before the trial Court for necessary order to enable her measure the ''C'' schedule property by directing the parties to cooperate with her. Such a prayer was made based on the claim that it was required for ascertaining encroachment, if any.

The applications were considered by the trial Court. By an order dated November 18, 2010, the application of the Commissioner was allowed whereas the application of the Defendants was rejected. The trial Court was of the view that it would not be prudent to interfere with the work of the Commissioner at this tage.

This order is under challenge in this application under Article 227 of the Constitution.

I have heard Mr. Chatterjee, learned senior advocate for the Defendant No. 1/Petitioner and Mr. Gupta, learned advocate for the Plaintiff.

I find no reason to accept the contention of Mr. Chatterjee that the Commissioner was allowed by the learned Judge of the trial Court to travel beyond the scope of investigation directed by this Court.

Bare perusal of the order passed by this Court on December 8, 2009 would reveal that the Commissioner, inter alia, is obliged to ascertain on local investigation whether the leasehold property covering 1744 sq.ft. has been encroached or not by while raising construction on ''C'' schedule property. Being present at the locale, the Commissioner felt the need of surveying ''C'' schedule property to ascertain encroachment, if any. It is at this stage that the Defendants raised objection. I am of the clear view that the Commissioner was perfectly justified in seeking to survey ''C'' Schedule property for ascertaining extent of encroachment, if any.

Furthermore, I have failed to comprehend why the Defendants raised objection. If at all the Defendants have not encroached any portion of ''B'' schedule property while raising construction on ''C'' schedule property, survey of ''C'' schedule property by the Commissioner cannot operate to their prejudice.

The objection of the Petitioner is without merit. By allowing the Commissioner to proceed with survey of ''C'' schedule property, the learned Judge did not commit any illegality warranting interference. After all, the parties to the suit would have the right to take such objection that is available in law against the report of the Commissioner as well as to examine her in open Court touching any of the matters mentioned in her report, or as to the manner in which she made the investigation. Thereafter, it would be the duty of the trial Court to examine whether the report of the Commissioner is worthy of credence or not. At this stage, the contention that the Commissioner has acted in a manner that offends this Court''s order dated December 8, 2009 is not at all well conceived. On the contrary, to serve the purpose for which appointment of Commissioner has been considered necessary by this Court in the earlier round of litigation, the Commissioner should not be precluded from surveying ''C'' schedule property.

I find no reason to interfere. The application stands dismissed, without order for costs.

The Commissioner shall be entitled to conduct further investigation work and to submit her report before the trial Court within a month from date of communication of this order.

Urgent photostat certified copy of this judgment and order, if applied, may be furnished to the applicant at an early date.