SANTI DAS Vs. PARBINA BEGAM

JUDGEMENT

(1.) INTRODUCTION:- The wheels of civil jurisprudence are engineered to secure the substantive rights of litigants through a predictable, structured, and expeditious process. However, when a simple lis instituted at the dawn of a decade languishes interminably at the pre-trial threshold, it tests the patience of the litigating public and undermines the very foundational ethos of speedy justice. The present application, invoked under Article 227 of the Constitution of India, brings to light a classic instance of such procedural friction, calling in question the legality, propriety, and jurisdictional soundness of Order No. 104 dated February 1, 2025, passed by the Learned Civil Judge (Junior Division), 2nd Court at Serampore, in Title Suit No. 218 of 2012, whereby the learned Trial Judge summarily rejected the plaintiff's prayer for the appointment of a survey-knowing Advocate Commissioner under Order 26 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter referred to as the "CPC").

(2.) A meticulous appraisal of the foundational facts is imperative to gauge the true complexion of the dispute. The petitioner herein, as plaintiff, instituted Title Suit No. 218 of 2012 before the Learned Civil Judge (Junior Division), 2nd Court at Serampore, praying for decrees of declaration of title, permanent injunction, and mandatory injunction directed toward the removal of alleged illegal constructions and encroachments made by the defendants / opposite parties. The core factual matrix reveals that the plaintiff is the absolute owner and possessor of the immovable property more fully described in the "Ka" schedule of the plaint, which devolved upon her by way of inheritance from her parents, who had purchased the same during their lifetime by virtue of a registered deed of sale being Deed No. 6309 for the year 1982. Appurtenant to this property, situated at its North-East corner, is a common passage measuring 3 feet by 17 feet, specifically delineated in the "Ka-1" schedule to the plaint, constituting the sole and exclusive pathway for ingress and egress to and from the plaintiff 's residential holding.

(3.) The grievance of the plaintiff reached a flashpoint on August 14, 2012, when the defendants, whose property is situated immediately to the western flank of the said common passage, allegedly commenced acts of nuisance, obstruction, and encroachment with the malafide design to block the pathway and amalgamate it into their own holding. Specifically, it is pleaded that Defendant No. 1 constructed an unauthorized water reservoir measuring 3 feet by 2 feet (described in the "Ka-2" schedule) by directly encroaching upon a portion of the "Ka- 1" common passage, alongside other structural violations infringing statutory open space norms ("Kha" schedule). Driven to the wall, the plaintiff lodged a local police complaint on August 14, 2012 (G.D. Entry No. 457), followed by a proceeding under Sec. 144(2) of the Code of Criminal Procedure, 1973, before ultimately knocking at the portals of the civil court by filing the substantive title suit.