Mir Dara Sheko, J. - (1.) The application under Article 227 of the Constitution of India has been directed against Order No.69 dated August 20, 2016 passed by learned Civil Judge (Sr. Division) at Serampore, Hooghly rejecting an application under section 151 of the Code of Civil Procedure filed by the defendantpetitioners and allowing an application under Order 26 Rule 9 CPC filed by the opposite party no.1-plaintiff in Title Suit No.271 of 2013.
(2.) Heard Mr Mukherjee representing the petitioners-defendants (hereinafter to be called on as the petitioners). Heard also Mr Rakshit assisted by Mr Bayard appearing for the opposite party no.1-plaintiff (hereinafter to be called on as the opposite party).
(3.) Taking note from the materials on record, including the impugned order, the backdrops of the case are found as follows. a) The petitioners have filed a suit (T.S. No.102 of 2010) against the opposite party for declaration and permanent injunction. b) The opposite party also filed a suit being T.S. No.155 of 2010 (renumbered as T.S. No.271 of 2013) over the self-same subject property seeking declaration and permanent injunction. c) Though in both the suits parties and subject property are the same and as this court has been apprised of order of learned District Judge, Hooghly, both the above-mentioned suits are being tried analogously by learned trial court, the dispute arose while the opposite party is claiming easement right for the purpose of use of passage and drain in between the portions of the parties. d) Contention of the petitioners is that in the deed of purchase, acquired by the opposite party, there was no existence of any such passage where the alleged right of easement or quasi-easement can be exercised. e) Rival contention, of course, is there as set out by the opposite party who claims easement right over such disputed portion which has been specified in the schedule A1 of the plaint of T.S. No.271 of 2013. f) Over the issue the opposite party had filed one application under Order 26 Rule 9 CPC. Learned trial court at that stage observed "claim of easement right does not come under the purview of survey commission", and rejected the said prayer of the opposite party. g) Being aggrieved the opposite party moved this court with a revisional application being CO No.1184 of 2014 which was disposed of on December 24, 2014 without interfering with the rejection order of learned trial court with a rider which is set out below: "In view of the relevant observation in the order impugned and since the petitioning plaintiff's right to seek local investigation has not been prohibited at a subsequent stage, CO 1184 of 2014 is disposed of without interfering with the order impugned dated February 14, 2014 but by leaving the plaintiff free to apply for local investigation if the oral evidence of the parties warrant the same. If such application is filed at a subsequent stage, the trial court will consider the same in accordance with law uninfluenced by the order impugned herein." h) Meanwhile the petitioners filed an application under section 151 CPC alleging that the opposite party had put their windowpanes outside their window by making aerial encroachment and prayed for removal of those windowpanes and to restore the building so far as windowpanes are concerned in its original position. i) The opposite party in his turn filed an application under Order 26 Rule 9 CPC praying before learned trial court for allowing all the points, including point no.4 which is relevant to the prayer made under section 151 CPC. Learned trial court upon hearing disposed of both the applications by one composite order on August 20, 2016 in allowing the prayer of local investigation and rejecting the prayer under section 151 CPC.;