PRASENJIT MANDAL, J. - (1.) THIS application is at the instance of the plaintiff and is directed against the order dated June 10, 2009 passed by the learned Civil Judge (Junior Division), 3rd Court, Howrah in Title Suit No.95 of 2005 thereby rejecting an application for local inspection filed by the plaintiff. The plaintiff / petitioner herein instituted a suit being Title Suit No.95 of 2005 praying for a decree of declaration that the plaintiff-firm is a lessee in respect of the suit property as described in the schedule to the plaint and the defendants have no manner of right to disturb the peaceful possession and enjoyment of the plaintiff in the suit property and have no manner of right to dispossess the plaintiff therefrom, a decree for declaration that the sale of the suit property made by the defendant no.s 1 to 5 is totally illegal, unlawful and against law of the land and liable to be set aside and other consequential reliefs of permanent injunction.
(2.) THE defendants are contesting the said suit by filing separate written statements denying the material allegations raised in the plaint. Issues had been framed on the basis of pleadings of the parties and the suit was at the stage of peremptory hearing. At that time, the application for local inspection was filed by the plaintiff and that application was rejected 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 plaintiff / petitioner herein filed the application for local inspection on the following points:- Points for Inspection 1. To draw a rough sketch map of the suit property situated at holding no.188 Girish Ghosh Road (formerly known as 160, Girish Ghosh Road) P.O.-Belurmath, P.S. Bally, District-Howrah. 2. To note down the user of the suit property by the plaintiff firm and to note how many rooms, sheds are lying in the suit property and the mode of user thereto. 3. To note down the number and nature and description of the plaint and machineries at present lying and installed in the suit property. 4. To note and report the local facture as would be pointed out at the time of commission work. The plaintiff has claimed the reliefs as mentioned above in the said suit over the entire land measuring 6 bighas at holding no.188 Girish Ghosh Road (formerly known as 160, Girish Ghosh Road) P.O.-Belurmath, under P.S. Bally, District-Howrah with specific boundaries. The defendant no.7 has contended in the written statement that the Mukherjees, that is, the defendant no.s 1 to 5 were the owners of the property. The defendant no.7 is carrying on the same type of rolling business as the plaintiff is doing and according to him, the entire suit property originally belonged to the Mukherjees who let out the suit property on a monthly rental basis to the plaintiff company and the last paying rent was Rs.600/- per month payable according to English Calendar Month. The defendant no.7 is carrying the same rolling business as per agreement dated October 25, 1985 on the land measuring 2 bighas 13 chattas approximately with the rolling machinery equipment by paying hire charges to the plaintiff. Thereafter, the plaintiff surrendered 2 bighas 13 chattas of land out of the suit property in favour of the Mukherjees and then by a Registered Deed of Sale dated October 19, 2001, the defendant no.7 had purchased the said land. He paid the hire charges for the rolling machine to the plaintiff up to October 2001 and on the date of sale the defendants also purchased the rolling mill equipment from the plaintiff and so, the plaintiff has no right, title, interest and possession in respect of 2 bighas 13 chattas land approximately and the rolling mill machine equipment.
(3.) THESE rival contentions are to be decided on the basis of evidence to be adduced by the parties. At that stage, the said application under Order 39 Rule 7 of the C.P.C. for local inspection on the points noted above was filed. So far as right, title and interest over the suit property are concerned, these facts are to be decided on the basis of the documents to be produced by the respective parties. So far as possession is concerned, it requires determination upon taking evidence and if the Commissioner is allowed to record who is in possession, he is to enquire the parties and also other persons nearby the suit property to ascertain who is in actual possession. So, such situation demands spot enquiry by examination of the parties and the witnesses. If this task is entrusted with the Commissioner, it will be nothing but for collection of evidence. In consideration of the relief sought for in the application for local inspection, I find that the inspection on those points has been sought for for the purpose of collection of evidence only which task cannot be entrusted with the Commissioner at the spot at all.;