Prasenjit Mandal, J. - (1.) THIS application is directed against the Order No.109 dated January 7, 2011 passed by the learned Civil Judge (Junior Division), 1st Court, Chandernagar in Title Suit No.2 of 1997 thereby rejecting a report submitted by the Investigating Commissioner.
(2.) THE short fact is that the plaintiff instituted a suit being Title Suit No.2 of 1997 for declaration of title, permanent injunction and other reliefs against the petitioner herein and another in respect of the suit property before the learned Civil Judge (Junior Division), 1st Court, Chandernagar. THE defendant / petitioner herein is contesting the said suit by denying the material allegations raised in the plaint. THE plaintiff filed an application under Order 26 Rule 9 of the C.P.C. for local investigation on the points as noted in the application for local investigation appearing as Annexure B to the application. That application was allowed on contest and accordingly a Survey Passed Commissioner was appointed. THE Survey Passed Commissioner submitted his report. THE plaintiff filed an objection against the report and upon hearing both the sides, the report submitted by the Investigating Commissioner was not accepted. Being aggrieved, this application has been preferred by the defendant. 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 two holdings bearing No.s 17 & 18 belonging to the plaintiff and the defendant respectively are situated side by side and that at the time of sale, the vendors had sold the said two holdings with specific demarcation. Subsequently, as the two holdings were small in size, both the parties to the suit agreed to leave 1 foot and 6 inches each from their portion of the land as intervening common space between the two holdings. The parties had raised their respective constructions on the ground floor accordingly. The local investigation was allowed on the following five points:- a) The local investigation work of Commissioner will go to the R.S. spot/plot No.3747 of Mouza Bhadreswar and by relaying and surveying the settlement map as well as of the plffs deed dt. 22.2.78 and will decide whether any portion of the defendants building or sunshed has encroached the plffs A(1) space lying adjacent to the East of the defendants B Schedule building and the measurements of encroachment of A(1) schedule property and also to ascertain whether A(1) Schedule space of the plff appertains to plffs A Schedule property. b) To draw a sketch map according to scale to show measurement of the defendants encroachments of their schedule property. c) To show the plffs pillars and boundary wall of the A(1) schedule space. d) To report whether there is any gap in between the construction of the plffs A schedule property and construction of the defendants B schedule property (new or old construction). e) To note other local features and the condition of the defendants construction which may be drawn by the plff at the time of local investigation to the Commissioner. As per report of the Commissioner, both the parties cooperated but he could not find any fixed point. The parties to the suit also could not show any fixed point or trijunction pillar and as such, he surveyed the suit land with the help of chain survey.
(3.) SO far as the other three sides of the two holdings except the intervening portion are concerned, there is no dispute at all. The intervening portion left by the parties has been shown as A- 1 of the Schedule of the property and this is the common space which happened after leaving 1 foot and 6 inches at the ground level by each of the two parties. The learned Trial Judge rejected the report on the ground that the report, prima facie, is unscientific and so, it cannot be accepted. Since, the rest three sides of the two holdings are not in dispute and the intervening space falls in the disputed zone between the parties and no objection came from either of the parties as to the measurement. The learned Commissioner opined that as per sale-deed, no encroachment by the defendant has been proved.;