Prasenjit Mandal, J. - (1.) CHALLENGE is to the Order No.45 dated January 3, 2006 passed by the learned Civil Judge (Junior Division), 7th Court, Howrah in Title Suit No.104 of 2002 thereby dismissing an application under Order 26 Rule 9 of the C.P.C. filed by the petitioner.
(2.) THE short fact is that the plaintiffs filed a suit being Title Suit No.104 of 2002 against the defendant / opposite party praying for declaration of title, permanent injunction and other reliefs. THE defendant is contesting the said suit and the suit was at the stage of peremptory hearing. At that time, the plaintiffs filed an application under Order 26 Rule 9 of the C.P.C. and the said application for local investigation was rejected on contest by the impugned order. Being aggrieved, this application has been preferred. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials on record I find that the learned Trial judge has committed errors of law in rejecting the application under Order 26 Rule 9 of the C.P.C. It is the specific case of the plaintiffs that they purchased 4 decimals of land as described in the plaint and out of the 4 decimals of land, they sold 1 decimal of land to the predecessor in interest of the defendant / opposite party. Such 1 decimal of land has been described in Schedule C to the plaint. The land of the plaintiffs has been described in Schedule A and B to the plaint. It is the specific contention of the plaintiffs that out of the remaining 3 decimals of land, the plaintiffs have their house on Schedule A property and that there is a vacant space measuring 242 square feet of land to the Southern side of their structure and this is mentioned in the Schedule B to the plaint. To the far South, the land of the defendant is situated. The plaintiffs have contended that they have taken loan from the bank for repairing of their house and when the defendant resisted they were compelled to file the suit for the reliefs stated earlier. So far as the possession of the properties by the parties in respect of Schedule A, B and C is concerned, there is no dispute. The plaintiffs have right, title and interest over A and B Schedule property and the defendants have no right, title and interest over the Schedule A and B property. But the defendant has right, title, interest and possession over Schedule C property. It is the specific case of the plaintiffs that the defendants are trying to encroach a portion of the B Schedule property which is denied by the defendant. Therefore, I find that there is a dispute as to the extent of possession by the respective parties in respect of the properties as described in Schedule A, B and C and such dispute between the parties is nothing but a boundary dispute.
(3.) SUCH boundary dispute could only be solved by appointment of a Survey Passed Commissioner by holding a local investigation and thereby by deciding the extent of possession of the lands by the respective parties. The learned Trial Judge has rejected the prayer of the plaintiffs on the ground that the plaintiffs have not prayed for recovery of possession and that they have given the specification of the Schedule B property and as such, there is no need of appointment of a Survey Passed Commissioner. I cannot agree with such observations. I am of the view that since there is a boundary dispute, in order to know the extent of possession by the respective parties, a survey of the lands of the parties should be held. In support of my observation, I have considered the decision of Angur Bala Sur and ors. v. Saktipada Sur and ors. reported in 2007(3) CHN 673 filed by Mr. Bhattacharya.;