Subrata Talukdar, J.

In this application under Article 227 of Constitution of India the order impugned No. 14 dated 9th March, 2012 passed by the Ld. Civil Court (Junior Division), Garbeta in Title Suit No. 41 of 2010 is under challenge. By the said impugned order No. 14 dated 9th March, 2012 the Ld. Trial Court was pleased to reject the application filed by the present petitioners-plaintiffs under Order 26 Rule 9 Code of Civil Procedure (for short CPC). The Ld. Trial Court was pleased to record, inter alia, that the application under Order 26 Rule 9 CPC was filed by the plaintiffs for local investigation to ascertain whether the lands in ‘ka/1’, ‘ka/2’ and ‘ka/3’ are part and parcel of the land in the trace map annexed with the Sale Deed No. 8102 in favour of the plaintiff No. 1 as also whether the lands in ‘kha/1’, ‘kha/2’ and ‘kha/3’ are part and parcel of the land in the trace map annexed to the Sale Deed No. 8100 in favour of the plaintiff No. 2.

Local investigation was also sought to ascertain the nature of construction over ‘ka/2’, ‘kha/2’, ‘ka/3’, ‘kha/3’ spaces of land as also whether ‘ka/1’, ‘kha/1’ are vacant lands or not. The present opposite parties-defendants (for short OPS) objected to the application for local investigation on the ground that out of the lands claimed by the plaintiffs 1.41 acres are vested to the State of West Bengal. It was also contended by the present OPS-defendants that one Ranjit Pal is in possession of a substantial portion of the suit land.

However, neither the State of West Bengal nor Ranjit Pal have been impleaded as parties to Title Suit No. 41 of 2010. According to the OPS-defendants without making the State of West Bengal and the said Ranjit Pal as parties, the plaintiffs cannot pray for local investigation at their sweet will. It is also contended on behalf of the OPS-defendants that no opportunity should be given to the petitioners-plaintiffs to fish for evidence through local investigation.

The Ld. Trial Court was of the opinion that it is for the Court to exercise discretion whether local investigation is necessary or not.

The object of local investigation is not to collect evidence which can be taken in court but to obtain evidence which can be only ascertained from the spot.

The Ld. Trial Court was of the further view that the OPS defendants have raised a specific plea with regard to the necessary impleadment of the State of West Bengal and Ranjit Pal in the suit.

The Ld. Trial Court was of the prima facie view that the presence of both the State of West Bengal and Ranjit Pal “are highly required” for adjudication of the application for local investigation. In the absence of either the State of West Bengal or Ranjit Pal complications are likely to arise during adjudication of the application for local investigation.

The Ld. Trial Court was also of the view that the object of the application for local investigation is to collect evidence and such design cannot be permitted. Hence the application under Order 26 Rule 9 CPC stood rejected.

Sri Saptangshu Basu, Ld. Senior Counsel appearing for the petitioners points out that the suit is for declaration, mandatory injunction and recovery of possession. Sri Basu further states that both the properties in the ‘ka’ Schedule and the ‘kha’ Schedule were conveyed respectively to the plaintiff No. 1 and plaintiff No. 2 by the their vendor, one Nirmalendu Mondal. The defendants purchased some lands adjacent to the lands of the plaintiffs and have started making unauthorised construction over ‘ka/2’ and ‘kha/2’ Schedule properties and are also putting a boundary wall around ‘ka/3’ and ‘kha/3’ Schedule properties.

In spite of repeated requests the OPS-defendants have failed to remove the illegal constructions and are steadily encroaching upon the property of the plaintiffs. It thus became necessary to file the instant suit.

According to Ld. Senior Counsel, in a suit for declaration involving a boundary dispute between the parties i