SANTOSH KUMAR SAHA Vs. GITA PAUL & ORS.

JUDGEMENT

(1.) This revisional application has been directed against the order No. 33 dated 3rd June, 1999 passed by the learned Civil Judge, Junior Division, First Court, Srirampur in Title Suit No. 116/95 under which the learned Civil Judge, Junior Division allowed a prayer for local investigation filed by the plaintiff-O.P. in respect of the suit property. Being aggrieved by that order the defendant of the suit that is the present revisional applicant has preferred this petition challenging that order as illegal, erroneous and therefore unsustainable.

(2.) It is the contention of the revisional applicant that in this case the plaintiff sought a local inspection and his prayer was allowed and a local inspection Commissioner was appointed and the learned Commissioner after going to the locality held an inspection and submitted a report as per the points given in the writ of commission. But, according to him, instead of raising any objection against that report of the learned local inspection Commissioner the plaintiff filed a petition for local investigation and the same has been allowed by the Court below unjustifiably. Mr. Basu, learned Advocate appearing on behalf of the revisional applicant has contended that this case does not call for any local investigation for the simple reason that the prayer of the plaintiff in his plaint is for declaration of easement right in respect of a particular portion of land marked as 'B' Schedule and 'C' Schedule property and there has been no prayer for declaration of any title or interest in respect of such portions of the suit property. According to him without challenging or getting the report of the local inspection Commissioner set aside the plaintiff cannot make a prayer for local investigation again for the self-same subject matter nor the Court can allow any such prayer. In support of this contention Mr. Basu refers to a decision reported in AIR 1997 Calcutta 80 wherein a Division Bench of this Court has held that for the purpose of ascertaining the condition of the demised premises the provisions of Order 26 Rule 9 or 10 are not attracted but the provisions of Order 39 Rule 7 are to serve as the remedy.

(3.) However in this proceeding we are not concerned with the question whether the prayer for local investigation can be held to be maintainable on the face of the local inspection commission report remaining unchallenged. Because the two are altogether different concepts. In local inspection only the existing condition of the suit property is to be found and reported but in local investigation elucidation is required for the ,purpose of enabling the Court to settle a dispute over a particular portion of the suit property and for that purpose sometimes measurement and relayment etc. may be necessary. In case of local inspection the report does not ipso facto become a part of the record and it has got to be proved by means of evidence and if it is made an exhibit admitted into evidence then and then only it can be relied upon. But in case of local investigation the position is quite different. The report of the local investigation Commissioner becomes a part of the record and unless and until it is discarded by the Court on the basis of materials on record it continues to remain so.