Sankar Kumar Mondal vs Smt. Latika Rani Sarkar and Others

Kalidas Mukherjee, J.—This is an application under Article 227 of the Constitution of India assailing the order No. 133 dated 20.12.2007 passed by learned Civil Judge (Junior Division), 1st Court, Baruipur in Title Suit No. 34 of 1996 rejecting thereby the petition under Order 26 Rule 9 read with Section 151 of the C.P.C.

The opposite party No. 1 being the plaintiff filed a suit for declaration and permanent injunction against the petitioners bearing T.S. No. 34 of 1996 in the learned Court below. The defendants entered appearance and filed written statement denying all the material allegations made in the plaint. The Suit Property originally belonged to Mrinal Kanti Chakraborty. Soleman Gazi, the vendor of the plaintiffs and the defendants, purchased 161/2 decimals of land from Mrinal Kanti Chakraborty. Soleman Gazi although had 161/2 of land, sold 171/2 decimals of land. Although in all the deeds, specifications of boundaries were there, but, at the time of delivery of possession it was not as per such specification. It becomes implied that at least there is some encroachment on somebody''s land although that might be unintentional. The learned Court below after hearing the parties was pleased to reject the petition under Order 26 Rule 9 of the C.P.C. Being aggrieved by the said order, the defendant Sankar Kumar Mondal has filed the instant application.

The learned Counsel appearing on behalf of the petitioner submits that in the deed of the defendant it has been mentioned that there is right of passage. It is contended that the defendant made a counter claim with regard to the right of easement in the said passage and if the prayer for local investigation is allowed the plaintiff would not be prejudiced in any way.

The learned Counsel for the petitioner has drawn my attention to paragraph 3(b) of the written statement wherein it has been averred that Mrinal Kanti Chakraborty retained more or less 11/2 of decimals of land over which there is a passage for ingress and egress of all the defendants and the plaintiff is also allowed to use the said passage as a sign of generosity but the plaintiff has no right title and interest over the said passage.

The learned Counsel appearing on behalf of the O.P. No. 1/plaintiff submits that both the plaintiff and the defendants purchased land from Soleman Gazi with specific demarcation mentioned in their respective deeds and in view of such demarcations of the land sold, there cannot be any ambiguity. It is submitted that local investigation cannot be made with a view to collecting evidence and the learned Court below was justified in rejecting the prayer for local investigation.

In paragraph 5 of the application under Article 227 of the Constitution of India it has been stated that in all the deeds specifications of boundaries were made, but, at the time of delivery of possession it was not as per such specification. In paragraph 6 of the instant application it has been stated that at least there is some encroachment in somebody''s land although that may be unintentional. It is, therefore, admitted that Soleman Gazi sold the land to the plaintiffs and the defendant by several deeds with specific and demarcated portions of land. From the copy of the plaint annexed with the application it appears that there is averment that the defendants are trying to encroach the ''ka'' schedule property by raising wall. The suit has been instituted for declaration and permanent injunction. The averment made in the instant application that their might be encroachment on somebody''s land, cannot be a sufficient ground for passing an order under Order 26 Rule 9 of the C.P.C.

Having heard the learned Counsel for the parties and on perusal of the materials on record, I find that the learned Court below was justified in passing the impugned order and there is no ground to interfere with the same.

In the result, the application under Article 227 of the Constitution of India fails and the same stands dismissed. There will be no order as to costs. The interim order, if any, stands vacated.

The learned Court below will dispose of the suit as early as possible.

Let a copy of this judgment be sent to the learned Court below immediately.

Urgent Photostat certified copy, if applied for, be handed over to the parties as early as possible.