GOPI DAS BABAJI Vs. BASUDEB DAS GUPTA

JUDGEMENT

(1.) The plaintiff in a suit for eviction in respect of Schedule B of the plaint on the ground of damage as envisaged in Section 108(m)(o)(p) of the Transfer of Property Act, 1882 has preferred the instant revisional application. By the impugned order, the trial court allowed an application filed by the defendant/petitioner, directing the plaintiff/petitioner to remove the blockage and/or closure of the access to the B Schedule suit property on the western side boundary wall of the same and to restore the same in its original condition within twenty working days from the date of passing of the order.

(2.) Learned counsel appearing for the petitioner submits that the trial court proceeded on the basis of a Commissioner's report dated April 20, 2017 to hold that there was a tin door on the western side boundary wall, which was blocked by the petitioner by raising a boundary wall, pursuant to an order of the trial court restraining the defendant from interfering in the repair work of the boundary wall by the plaintiff and granting permission to the petitioner to carry out repair work on the boundary wall.

(3.) It is submitted that the said Commissioner's report was filed in connection with an application of the opposite party for repair of the suit rooms and did not pertain to the boundary wall at all. As such, any finding in the said report and/or depiction in the sketch map annexed to such report could only be looked into for the purpose of the repair of the suit rooms. The said report and connected sketch map would not be of a valid indicator as far as the position of the boundary wall, or the existence of any gate thereon, on the relevant date was concerned. Hence, it is argued that the trial court acted without jurisdiction in relying solely on such report to ascertain the condition of the boundary wall and an alleged tin door on the said wall prior to the repair of the boundary wall by the petitioner.