ARBIND BHATTACHARYA Vs. BALARAM MODAK

JUDGEMENT

(1.) The impugned order No. 126 dated 09.03.2018 passed by the learned Civil Judge (Junior Division) 3rd Court, Burdwan in Title Suit No. 9 of 2014 rejecting an application under Sec. 151 of the Code of Civil Procedure, praying for repairing of two rooms, situated in the schedule property, is the subject of challenge in this revisional application under Art. 227 of the Constitution of India.

(2.) In connection with a suit registered as Title Suit No.9 of 2014, instituted by the plaintiff, praying for declaration of title and permanent injunction, based on the claim of adverse possession, defendants/petitioners filed a petition dated 26.07.2016 praying for undertaking repairing work of one Asbestos sheded room, situated in the western side of the suit property and one "Goalghar" situated in the eastern side of the suit property for its dilapidated condition on the ground of ensuing monsoon, which was rejected by the court below, holding that the property in respect of which, the repairing was sought for belonged to plaintiffs/opposite parties. The suit property was subjected to Local Inspection Commissioner, and the report of such Commissioner was furnished in the court below. Since defendants/petitioners failed to produce any documents transpiring their right, title and interest to repair the rooms in question, the court below was not prepared to accept the prayer for repairing, and accordingly rejected the same.

(3.) Learned advocate for the petitioners submitted that learned court below failed to exercise its authority forgetting the fact that the defendants/petitioners are the true/real owners of the suit property, and the plaintiffs/opposite parties raised their claim in the suit seeking declaration on the basis of their claim of adverse possession. Thus pending adjudication of the rights of the parties, the learned court below ought to have granted the prayer for repairing of the damaged two rooms for the same being dilapidated and worn-out bearing in mind that against true owners like defendants, the plaintiffs/opposite parties attempted to establish the claim of adverse possession, and sought for a declaration accordingly on the basis of their alleged claim of adverse possession.