PRASENJIT MANDAL,J - (1.) THIS application is at the instance of the plaintiff and is directed against the Order No.183 dated August 26, 2003 passed by the learned Civil Judge (Junior Division), 6th Court, Howrah in Title Suit No.163 of 1991 thereby rejecting the objection filed by the plaintiff against the report of the learned Commissioner under Order 26 Rule 9 of the CPC.
(2.) THE plaintiff/opposite party herein instituted the suit being Title Suit No.163 of 1991 for recovery of possession, permanent injunction and other reliefs against the defendant/opposite party herein. The defendant/opposite party herein is contesting the said suit by filing a written statement denying the material allegations raised in the plaint. In that suit, the plaintiff filed an application for local investigation and that application was allowed. Accordingly, the investigation was held in presence of both the parties and the learned Commissioner submitted his report holding, inter alia, that there was no encroachment by the defendant on the 'B' schedule property of the plaintiff as described in the schedule to the plaint. Being aggrieved by such findings, this application has been preferred by the plaintiff. The question is whether the learned Trial Judge is justified in rejecting the objection raised by the plaintiff/petitioner herein against the report of the Commissioner.
(3.) UPON hearing the learned Advocates for the parties and on going through the materials-on-record, I find that the suit property has been described in schedule 'A' and schedule 'B' to the plaint and the plaintiff has prayed for recovery of 'B' schedule land by eviction of the defendant therefrom. This 'B' schedule land is a strip of land measuring 55'-0" x 8'-00" and this strip of land according to the plaint case is a part of the 'A' schedule land as described in the schedule to the plaint. The plaintiff has also prayed for mandatory injunction directing the defendant to dismantle and remove the part or portion of the 'Kutcha Hut' standing on a part of 'B' schedule land and also permanent prohibitory injunction restraining the defendant from raising any structure on any part of 'B' schedule land and from making further encroachment on any part of 'A' schedule land. The local investigation was sought for on the following two points:- (i) For relayment of the partiable two plots described in the Schedule 'A' to the plaint on the Partition Deed together with the plan dated April 25, 1983; and (ii) To prepare a case map depicting the boundaries of 'A' schedule plot and area or portion encroached upon by the defendant as described in schedule 'B' to the plaint. ;