Prasenjit Mandal - (1.) THIS application is directed against the Order No.38 dated December 4, 2010 passed by the learned Civil Judge (Junior Division), Sadar Court, Suri, District Birbhum in Title Suit No.134 of 2006 thereby rejecting an application for local investigation.
(2.) THE short fact is that the petitioner instituted a suit being Title Suit No.134 of 2006 before the learned Civil Judge (Junior Division), Suri, Birbhum for recovery of possession, permanent injunction and other reliefs. THE defendant is contesting the said suit by filing a written statement denying the material allegations raised in the plaint and the suit was at the stage of peremptory hearing. At that time, the plaintiff / petitioner herein filed an application under Order26 Rule 9 of the C.P.C. praying for local investigation on the points as per his application appearing as Annexure P-1 at page no.31. THE opposite party filed a written objection to the said petition and then, upon hearing both the sides, the learned Trial Judge rejected the application for local investigation 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 am of the view that the learned Trial Judge has committed a wrong in rejecting the said application for local investigation. The plaint contains two schedules of properties out of which Schedule "A" is the total land and Schedule "B" is the land over which encroachment had been done by the defendant as per plaint case and recovery of possession has been sought for thereon. While disposing of the application, the learned Trial Judge dismissed the prayer of the plaintiff holding that the Schedule "B" property had been properly identified by plot number and the area of the land describing encroachment to the extent of 60 sq.ft. (4 ft/ 15 ft) on the North-Eastern portion of the Schedule "A" land. Thus, he rejected the application.
(3.) MR. Hiranmoy Bhattacharya appearing on behalf of the petitioner has contended that the plaintiff has described the entire property in Schedule "A" and the encroached portion has been described in Schedule "B" with the specification as given in the schedule of the plaint and as such, it has to be verified, so that the future complications may be avoided. On the other hand, Mr. Supriya Chatterjee appearing on behalf of the opposite party has contended that the investigation of the suit land is not, at all, required, inasmuch as the encroached area had been properly described in Schedule "B" to the plaint and as such, no investigation is required. In support of his contention he has referred to the decision of Kuresha Khatun & ors. v. Momuddin Ansari (dead) & ors. reported in 2011(2) ICC 778 (Head Note B) passed by this Bench and thus, he submits that in exercising the revisional jurisdiction under Article 227 of the Constitution of India, every wrong decisions made by the lower courts cannot be interfered with under Article 227 if such decisions have been made within the jurisdiction of the lower court. He has contended that in arriving at such conclusion by this Bench, His Lordship has relied on the decision of the Apex Court reported in 1996(3) ICC(SC) 14 (State of Hariyana v. Chandra Mani).;