PRITI ROY Vs. JAYA NASKAR

JUDGEMENT

(1.) The petitioner is the plaintiff in a suit for declaration and permanent injunction. It is her claim in the plaint that the suit property, measuring 1 cottah 10 chittaks 8 sq.ft. of 'bagan' land and comprised in Dag No. 2562, was purchased by her from the defendant No. 1 (since deceased) by a registered deed of sale dated October 19, 1999 on valuable consideration. Since purchase, coupled with delivery of possession of the suit property, the petitioner is in peaceful possession thereof as absolute owner. While being seized and possessed of the suit property, the petitioner had received notice in connection with proceedings initiated by the defendant No. 2 under section 144(2) of the Code of Criminal Procedure. For the first time, the petitioner came to learn from the application that the defendant No. 1 had sold the suit property to the defendant No. 2 by a purported sale deed dated April 4, 2000. Accordingly, the suit was instituted praying for a declaration that the sale deed dated April 4,2000 executed by and between the defendant Nos. 1 and 2 is void, invalid and inoperative and not binding on the petitioner and for permanent injunction restraining the defendants and/or their men and/or agents from interfering with peaceful possession and smooth enjoyment and user of the suit property by the petitioner. An application under Order 39 Rules 1 and 2 of the Code of Civil Procedure (hereafter the CPC) was filed by the petitioner in connection with the suit seeking temporary injunction so that the defendants could be restrained from interfering with and/or disturbing her possession of the suit property. At or about the same time, the defendant No. 2 filed an application under Order 39 Rule 7 of the CPC. It was pleaded in the said application by the defendant No. 2 that he had right, title and interest in respect of the suit-property and was in possession thereof, where from he was running his business. The application was filed for bringing the actual picture of the suit property to the notice of the Trial Court.

(2.) The applications were contested by the respective respondents therein. The application under Order 39 Rules 1 and 2 was disposed of by an order dated May 10,2002, whereby the Trial Court directed maintenance of status quo in respect of the suit property till disposal of the suit. By the self-same order, the application under Order 39 Rule 7 was also allowed. A learned advocate was appointed Commissioner to hold commission on the points mentioned in the schedule of the application, which read as follows:

(3.) Part of the order dated May 10, 2002, whereby the prayer of the defendant No. 2 for local inspection was allowed, was challenged by petitioners before this Court by filing an application under Article 227 of the Constitution. A learned Judge of this Court by order dated October 29, 2003 was pleased to allow the revisional application. The appointment of the Advocate Commissioner for the purpose of local inspection of the suit property was set aside on the ground that question of possession can never be ascertained by way of local inspection. The suit was directed to be disposed of expeditiously.