ANANDA CHANDRA PAUL Vs. SANTOSH ROY

JUDGEMENT

(1.) This application has been preferred by the petitioner-plaintiff under Article 227 of the Constitution of India challenging Order No.100 dtd. 20/9/2023 passed by learned Civil Judge (Junior Division), 2nd Court, Jalpaiguri in Title Suit No. 112 of 2012 rejecting the prayer of the petitioner under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'Code').

(2.) The brief fact of the case in nutshell is that the petitioner-plaintiff filed a suit for declaration and permanent injunction before the learned Trial Court registered as Title Suit No. 112 of 2012. During the pendency of the suit, the opposite parties-defendant nos.1 to 9 trespassed into a portion of the suit land by dispossessing the petitioner-plaintiff. Accordingly, the petitioner-plaintiff by way of amendment of the plaint inserted a prayer for a decree of recovery of possession of the suit property. The suit was taken up for examination of the witnesses. At the said stage of examination of witnesses, the petitioner-plaintiff filed an application under Order XXVI Rule 9 of the Code for local investigation commission of the suit property by survey commissioner. Upon hearing, the aforesaid petition of the petitioner-plaintiff under Order XXVI Rule 9 of the Code was rejected by the learned trial court by the impugned order under challenge. Being aggrieved by and dissatisfied with the impugned order, the petitioner-plaintiff has preferred the present revisional application.

(3.) Mr. Saumyajyoti Dutta, learned advocate for the petitioner-plaintiff submitted that the plaintiff purchased a Tea Plantation Project located at Manirbari within Mouza Khayerkhal and Padamoti under P.S. Maynaguri, measuring more or less 17.52 acres from the erstwhile vendor Lotus Project Private Limited by way of registered deeds of purchase. Subsequent thereto, the petitioner-plaintiff got the land measuring more or less 9.47 acres, covered by the plantation, mutated in his name and possessing the same by paying rent to the Government. Since some quantum of the land where tea plantation was made by erstwhile Lotus Project Private Limited were found to be vested, the plaintiff applied for long term lease in respect of those plots of the tea project under his exclusive physical possession. On 22/11/2015, the defendant nos. 1 to 9 forcibly trespassed into a portion of the suit land by way of dispossessing the rightful, lawful owner i.e. the petitioner-plaintiff. The defendant nos. 1 to 9 are nothing but rank trespassers having no manner of legal right, title, authority to possess the said portion of the suit property. In order to recover the portion of the suit land trespassed and illegally possessed by the defendants, the plaintiff incorporated a prayer for a decree of recovery of possession. In the suit on the prayer of the petitioner-plaintiff, an order of status quo was passed. For violation/disobedience of the said order, an application under Order XXXIX Rule 2A of the Code read with Sec. 151 of the Code was filed. While dismissing the said application, the Court held that there is no demarcation of the suit land and as such, local investigation commission is very vital to distinctly identify the suit property. The defendants by filing their written statement have also stated that the suit land is not identifiable and it has never been demarcated or partitioned. It is also settled position of law that where there is dispute with regard to demarcation and boundary, the same can only be ascertained by way of survey commission. To buttress his aforesaid contentions, he relied on the following decision: