Kalidas Mukherjee, J. - (1.) This is an application under Article 227 of the Constitution of India assailing the order No. 133 dated 20.12.2007 passed by learned Civil Judge (Junior Division), 1st Court, Baruipur in Title Suit No. 34 of 1996 rejecting thereby the petition under Order 26 Rule 9 read with Sec. 151 of the C.P.C.
(2.) The opposite party No. 1 being the plaintiff filed a suit for declaration and permanent injunction against the petitioners bearing T.S. No. 34 of 1996 in the learned Court below. The defendants entered appearance and filed written statement denying all the material allegations made in the plaint. The Suit Property originally belonged to Mrinal Kanti Chakraborty. Soleman Gazi, the vendor of the plaintiffs and the defendants, purchased 161/2 decimals of land from Mrinal Kanti Chakraborty. Soleman Gazi although had 161/2 of land, sold 171/2 decimals of land. Although in all the deeds, specifications of boundaries were there, but, at the time of delivery of possession it was not as per such specification. It becomes implied that at least there is some encroachment on somebody's land although that might be unintentional. The learned Court below after hearing the parties was pleased to reject the petition under Order 26 Rule 9 of the C.P.C. Being aggrieved by the said order, the defendant Sankar Kumar Mondal has filed the instant application.
(3.) The learned Counsel appearing on behalf of the petitioner submits that in the deed of the defendant it has been mentioned that there is right of passage. It is contended that the defendant made a counter claim with regard to the right of easement in the said passage and if the prayer for local investigation is allowed the plaintiff would not be prejudiced in any way.;