BISWANATH MONDAL Vs. MAYARANI PAL

JUDGEMENT

(1.) This application is at the instance of the Plaintiffs and is directed against the judgment dated January 9, 2008 passed by the learned Civil Judge (Senior Division), Additional Court in Misc. Appeal No. 71 of 2006 thereby reversing the order No. 149 dated July 4, 2006 passed by the learned Civil Judge (Junior Division), 2nd Court, Hooghly in Title Suit No. 161 of 1990.

(2.) The short fact is that the Petitioners instituted a suit being Title Suit No. 161 of 1990 for declaration of title, permanent injunction and other relief's against the opposite parties before the learned Civil Judge (Junior Division), Hooghly. The Defendants/opposite parties are contesting the said suit by filing a written statement denying the material allegations raised in the plaint and they have contended that their predecessor-in interest got the property by way of permissive possession and the R.S. record had been recorded in his name by permissive possession accordingly. The Petitioners filed an application for local investigation and the opposite parties raised objection against that application. The application for local investigation was rejected. Subsequently, the Petitioners filed an application for review under Order 47 Rule 1 of the Code of Civil Procedure and that review application was allowed. The learned Commissioner was directed to investigate the suit properties accordingly. Thereafter, he submitted a report. The Defendants/opposite parties filed an application challenging that order. That application was rejected. The opposite parties filed a misc. appeal being Misc. Appeal No. 71 of 2006 before the learned District Judge, Hooghly. Thereafter, the said misc. appeal was transferred to the Court of the learned Civil Judge (Senior Division), Additional Court, Hooghly. By the judgment dated January 9, 2008 the learned Civil Judge (Senior Division), Additional Court allowed the said misc. appeal. Being aggrieved, this application has been preferred.

(3.) Upon hearing the learned Counsel for the parties and on going through the materials on record, I find that the application for local investigation filed by the Petitioners was allowed on an application for review filed by the Plaintiffs/Petitioners herein. Accordingly, the Advocate/Commissioner was appointed by the learned Trial Court to investigate the suit properties as per writ issued to him and ultimately, the learned Commissioner submitted his report. From the materials placed in the application, I find that when the learned Commissioner started his work for investigation both the parties participated in the investigation proceedings. This being the position, I am of the view that there is no scope of challenging of the impugned order.