MANABESH CHANDRA MUKHERJEE Vs. DIPAK KUMAR SINGHA

JUDGEMENT

(1.) -The instant Civil revisional application under section 115 of the Code of Civil Procedure is at the instance of the plaintiff-petitioners 1 and 2 and is directed against the Order No.108 dated 7.9.93 passed by the learned Munsif, Second Court, Katwa in Title Suit No. 59 of 1980.

(2.) The case of the plaintiff-petitioners was in brief that they filed a suit being T.S. No. 59 of 1980 before the learned Munsif, Second Court, Katwa praying inter alia for declaration that they were the absolute owners in respect of the suit property mentioned in Schedule 'Ga' to the plaint and for permanent injunction restraining the defendant-O.Ps from interfering with the peaceful possession and enjoyment of the said property. In the said suit the plaintiff-petitioners also averred that the 'Ka' Schedule property, which was a drain (Nallah), was also part and parcel of the 'Ga' Schedule property. It was also alleged by them in the said suit that the defendant-O.Ps raised a brick built wall encroaching on the 'Ka' Schedule property. It was the further case of the plaintiff-petitioners that for the purpose of proper adjudication of the said suit they filed a petition before the learned Court below under Order 26 Rule 9 of the CPC for elucidation of certain points in controversy between the parties. Such a prayer was allowed by the learned trial Court below and Shri Siddheswar Hazra, a Surveyor passed lawyer, was appointed as the Commissioner for holding local investigation in respect of the suit property. After holding the said local investigation, Shri Hazra duly submitted his Report, Case-Map and Field Book etc. before the learned trial Court below on 21.9.91. Unfortunately the defendant-O.Ps raised objections in regard to acceptance of the said Report on various grounds. After due hearing of the matter and also after examination of the learned Advocate Commissioner, the learned Court below refused to accept such a Report etc. on various grounds mentioned in the impugned order dated 7.9.93. Hence the instant Civil revisional application by the plaintiff-petitioners for redressal of their grievances.

(3.) I have had the opportunity of hearing learned counsels for both the parties at length in the matter.