Sahidullah Munshi, J. - (1.) This is Revisional Application is directed against order dated 23rd November, 2017 passed by the learned Civil Judge, Senior Division, 2nd Court, Alipore, District South 24 Parganas in Title Suit no. 2461 of 2014. By the order impugned the learned Judge has rejected the plaintiff's application under Order 26 Rule 9 of the Code of Civil Procedure on contest by the defendant no.1.
(2.) Plaintiff filed a suit for partition and separate possession in respect of certain land described in the scheduled of the plaint in which he is owner of 3/7 in undivided, un-partitioned land. Thus, according to the plaintiff he is the undivided owner of 18 decimals out of a total of 42 decimals of land in dag no. 713/1019. It is his specific pleading in the plaint that plaintiffs and the defendants are joint owners of the said 42 decimals of land and that the plaintiffs and the defendants are in joint possession of the suit land and have been enjoying the same and paying Khajna to the government. It is alleged by the plaintiffs that suddenly the defendants came with their men and agents on the suit land and tried to encroach upon the land of the plaintiffs to dispossess them. In the suit the plaintiff has sought for partition and for permanent injunction restraining the defendants from forcibly taking possession and occupying the suit land described in the schedule. In this suit the plaintiff has filed an application under order 26 of Rule 9 of the Code of Civil Procedure a copy of which has been annexed to this Revisional Application. In the said application the plaintiffs have stated that since the defendant no.1 in his objection stated that the plaintiffs' 18 decimals of land is not identifiable and the defendants are not admitting plaintiffs' share, the suit land requires to be identified by a survey passed Commissioner and also to find out the boundary of the suit land and to take measurement. The plaintiff has also made a point for being investigated by the Commissioner as regards the status and possession of the said 18 decimals of land. Defendant no.1 entered appearance filed both written objection and written statement opposing the suit plaint and the prayers for appointment of Investigation Commissioner.
(3.) Defendant no.2 is represented by Mr. Mitra, learned senior advocate and submitted that his client has not been served with the summons, however, on being served by the application his client filed objection to the application and contested the same contending, inter alia, that admittedly when the suit is a suit for partition, before preliminary decree is passed, plaintiff cannot pray for appointment of an Investigation Commissioner under Order 26 Rule 9 of the Code of Civil Procedure as a matter of course. He has drawn attention of this Court to the provision of Order 26 Rule 12 and 13 which says that Court to give Commissioner necessary instructions and thereafter, Commissioner to make partition of immovable property. Order 26 Rule 12 and 13 are set out below: O.26 R. 12. Court to give Commissioner necessary instructions:- (1) The Court shall furnish the Commissioner with such part of the proceedings and such instructions as appear necessary, and the instructions shall distinctly specify whether the Commissioner is merely to transmit the proceedings which he may hold on the inquiry, or also to report his own opinion on the point referred for his examination. Proceedings and report to be evidence. Court may direct further inquiry- (2)The proceedings and report (if any) of the Commissioner shall be evidence in the suit, but where the Court has reason to be dissatisfied with them, it may direct such further inquiry as it shall think fit. R. 13. Commission to make partition of immovable property:- Where a preliminary decree for partition has been passed, the Court may, in any case not provided for by section 54, issue a commission to such person as it thinks fit to make the partition or separation according to the rights as declared in such decree.";