Sri Biswajit Das and Ors vs Smt. Ruma Barh and Ors

Harish Tandon, J.—This revisional application is directed against the order dated 26th June, 2009 passed by the learned civil Judge (junior division) 4th Court at Sealdah in title suit No. 6 of 2000 by which an application under Order XXVI Rule 9 of the CPC is rejected.

The petitioners instituted the above mentioned title suit seeking for declaration of their title in respect of the property as described in Schedule ''A'' to the plaint and further declaration for correction of names recorded by the revenue Authority in the revenue register. The opposite parties took the defence that the suit property was also a subject matter of the partition suit which was instituted between the predecessor of the plaintiffs/petitioners and other members of the family and the suit property was exclusively allotted to the plaintiffs of that suit and thus denied that the plaintiffs/petitioners have any semblance of right in respect of the suit property.

Initially application under Order VII Rule 11 and Order XIV Rule 2 of the Code was taken out challenging the maintainability of the suit which was allowed by the trial Court as a consequence whereof the suit was dismissed. The First Appeal against the said order was also dismissed but this Court while considering the Second Appeal set aside the judgment and decree and remanded the matter back to the trial Court for reconsideration upon giving an opportunity to the parties to adduce evidence. This Court observed that whether the suit property is a subject matter of the partition suit or not or whether the properties included in the partition suit and the present suit are identical or different is a matter which is required to be decided in the said suit.

By filing an application under Order XXVI Rule 9 of the Code, the petitioners prayed for an appointment of the survey passed Commissioner for relay and survey of the suit property as there is dispute as to the identity of the property.

In support of the said application the petitioners place before this Court a judgment rendered in the case of Nandarani Bhandari & Ors. vs. Smt. Pratima Bhandari & Anr. reported in 2005(2) CLJ (Cal) 187 to contend that when there is a dispute as to the identity of the property as well as ascertainment of the boundaries of the properties involved with the suit, local investigation is required. By contending that dispute as to the identity of the property can be resolved by investigation, the petitioners place reliance upon a judgment of the Apex Court in the case of Shreepat Vs. Rajendra Prasad and Others,

By refuting such contention, the opposite parties submit that there is no dispute involved in the suit relating to the identity of the property and as such the trial Court rightly rejected the application under Order XXVI Rule 9 of the Code.

Having considered the respective submissions, it is to be reminded that the Court can order for local investigation for the purpose of elucidating any matter in dispute by appointing a Commissioner.

The dispute as would be evident from the respective pleadings is the negation of right, title and interest of the petitioners in respect of the scheduled property. According to the petitioners, their predecessors acquired the suit property on the strength of a deed of purchase and such property was never included in the partition suit whereas it is specifically pleaded by the opposite parties that the suit property was the subject matter of the partition suit. Therefore, the dispute centres around whether the scheduled property was a subject matter of partition suit or not, which in my considered opinion, cannot be ascertained on investigation by appointing a Commissioner. It is essentially a dispute relating to the negation of right, title and interest and not a dispute relating to the identity of the property.

There is no quarrel to the proposition of law that in case of dispute as to the identity of the property or for ascertainment of the boundary disputes, the Court must appoint a Commissioner for holding investigation for proper, effective and complete adjudication of the dispute. But as indicated above, this Court does not find any dispute as to the identity of the property and as such the trial Court has not committed any illegality or infirmity in rejecting the said application.

There is considerable force in the submission of the petitioners that the trial Court did not record any reason at the time of dismissing the said application. It is true that the Court must record the reason as the litigant has the right to know the reason relating to the fate of an application. But it is also equally true that if the superior Court finds that the conclusion arrived by the trial Court is correct then the superior Court is not denuded from supplying the reasons. In such view of the matter, this Court does not find any reason to interfere with the impugned order.

The revisional application is, therefore, dismissed.

For abundant precaution, it is made clear that the finding made by this Court is restricted to an application under Order XXVI Rule 9 of the Code and shall not be construed to have been made on the merit of the suit.

There shall be however, no order as to costs.

Photostat certified copy of the order, if applied for, be given to the parties at an early date.