NILIMA DAS CHOUDHURY Vs. JAYANTA KUMAR DAS

JUDGEMENT

(1.) Heard Shri BK Sen, learned counsel for the petitioners, who have filed this petition under Article 227 of the Constitution of India against an order dtd. 30/5/2023 passed by the learned Additional District Judge, Hailakandi in Title Appeal No. 05/2023. By the said order, the learned Appellate Court has appointed a Commissioner to make a local inspection to ascertain the possession of the parties over the Suit land.

(2.) The petitioners were the defendant Nos. 1 to 7 in the connected Title Suit No. 12/2011 which was filed in the Court of learned Civil Judge, Hailakandi. It is the case of the petitioners that the said suit was dismissed after appreciation of evidence whereafter, the plaintiffs had preferred the aforesaid appeal in which the impugned order dtd. 30/5/2023 has been passed.

(3.) Shri Sen, learned counsel for the petitioners by referring to Sec. 75 of the Code of Civil Procedure has submitted that such powers are to be exercised only for the purpose of appreciation of evidence and in the instant case, since the evidence were already adduced by the parties which were closed and duly appreciated, there is no further scope for exercise of such powers under Sec. 75 of the Code, that too, by an Appellate Court. He submits that powers of the present nature are to be exercised at the first stage itself and cannot be extended to an appellate stage as question of possession would have existed at the time of filing of suit itself.