MOHINI MOHAN KUNDU Vs. SYED MAJID

JUDGEMENT

(1.) This is a Rule directed against Order No. 139, dated the 6th November, 1968 in Title Suit No. 20 of 1963 (Andrews Joakin and Others v. M/s. Gulenur Bibi and Others) in the first Court of the Subordinate Judge allowed the application of the defendant No.9, Messrs. Burn & Co. Ltd. praying for local investigation of the property in suit under the provisions of Order XXVI, Rule 9 of the Code of Civil Procedure. It appears that a large plot of land which was originally known as No. 20, Durgapur Lane in Alipore was subsequently sub-divided, renumbered and renamed; and a portion thereof is now known as 14, Alipore Avenue which is the subject-matter of this suit. The plaintiffs claim to be the purchase of an undivided share in 14, Alipore Avenue. The defendant No.9 Messrs. Burn & Co. Ltd. claims that it is entitled to the entire property and is in possession thereof. The learned Subordinate Judge has made an order for local investigation in respect of this property.

(2.) Before we proceed any further with the facts of this case, we should try any appreciate the principles governing an order for local investigation. This order, as we have said is made under the provisions of Rule 9 of Order XXVI of the Code. The Rule reads thus: - ?In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute . . . . the Court may issue a commission to such person as is thinks fit directing him to make such investigation and to report thereon to the Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .?

(3.) This Rule has been construed in a number of decision of this Court as well as of other High Courts. And we may conveniently refer to some of them. In (1) Amulya Kumar Samaddar and Others v. Annada Charan Das and Others, reported in AIR 1933 Cal 475, this Court has laid down that where the question to be decided is whether certain structures are old or new, the proper procedure is to issue commission under Order 39, Rule 7 and not under Order 26, Rule 4 or Rule 9. It is observed: ?The last mentioned rule (Rule 9) however was not meant to cover a case of this description. It only enables the Court to depute a Commissioner to hold a local investigation for the purpose of elucidating a matter in dispute . . . . .The only part of this rule within which a matter of this description may be reasonably attempted to be brought is the part which says that a commission may be issued for the purpose of elucidating a mater in dispute. This commission however was not for the purpose of elucidating any matter about which the parties were at variance because there was nothing which required any explanation. What was required was a decision on the question as to whether what was asserted on behalf of the other side namely that the structures standing on the land were recent and not old structures was a true assertion or not, a matter about which the Court and the Court alone had jurisdiction to enquire into and decide upon.?