Prasenjit Mandal, J. - (1.) THIS application is at the instance of the plaintiff and is directed against the order no.25 dated January 15, 2010 passed by the learned Civil Judge (Junior Division), Ranaghat in Title Suit No.100 of 2008 whereby an application under Order 26 Rule 9 of the Code of Civil Procedure filed by the petitioner was rejected.
(2.) THE short fact is that the plaintiff instituted a title suit being Title Suit No.100 of 2008 against the defendant/opposite party and other proforma defendants praying for permanent and mandatory injunction. THE defendant is contesting the suit. During pendency of the suit, the plaintiff filed an application for local investigation and that petition was rejected by the impugned order. Being aggrieved, the plaintiff/petitioner herein has preferred this revisional application. Now the point for consideration is whether the impugned order can be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the petitioner filed the suit praying for relief of permanent and mandatory injunction directing the defendant to remove the construction raised by it on the land of the petitioner as per schedule 'kha' of the plaint and for permanent injunction restraining the defendants from interfering with the plaintiff's possession of the suit property. Therefore, from the reliefs sought for in the plaint, it is apparent that the plaintiff is out of possession of the suit property, as described in the schedule of the plaint. He did not pray for recovery of possession of the suit property. If the plaintiff has possession of the suit property and if there is no boundary dispute at all, the question of appointment of a survey passed commissioner for holding a local investigation does not arise at all.
(3.) MOREOVER, from the copy of the documents as furnished by the petitioner, it appears that the plaintiff has contended in his plaint that on November 24, 1977 he transferred 900 square feet of land in favour of the contesting defendant by way of a deed of gift for preparation of a shed for rest for the passengers. So, he gifted the land in favour of the opposite party no.1. Thereafter, he filed a writ petition before this Hon'ble Court and by an order dated September 17, 2007 in W.P. No.19915 (W) of 2007, Hon'ble Mr. Justice Dipankar Dutta directed to make survey and measurement of the land in suit on the selfsame allegation, within a period of three weeks from the date of receipt of the copy of that order. That writ proceeding was started at the initiation of the petitioner. Accordingly, the opposite party herein issued a notice upon the petitioner by registered post with A/D well ahead intimating that the survey of the land of the suit would be conducted on a particular date. But the petitioner did not cooperate, though the writ application was initiated at his instance. After holding investigation as per direction of the Hon'ble Court, the opposite party prepared a report. Therefore, I find that the survey and measurement of the land in suit had already been done at the instance of the petitioner. But, ultimately he did not cooperate at the time of actual survey and measurement by the opposite party.;