In a suit for declaration of easement, where the record of right is silent on the point of existence of the disputed passage, the appointment of a Survey Commissioner to determine the true state of affairs is necessary.

Supplementary affidavit filed on behalf of the opposite parties be kept on record.

2. The petitioners are the plaintiffs in Title Suit No. 161 of 1994 pending in the court of learned Civil Judge (Junior Division), 2nd Court, Hooghly. The petitioners are the owners of the property described in Schedule ‘A’ to the plaint. The defendants are the owners of the property described in Schedule ‘B’ to the plaint. The property described in Schedule- ‘C’ is the alleged pathway lying on the eastern side of the ‘B’ Schedule property. The plaintiffs have, inter alia, prayed for declaration that they have right by way of easement in respect of the ‘C’ Schedule property.

3. The defendants in the written statement denied the existence of any such passage in the ‘B’ Schedule property.

4. The plaintiffs made an application under Order 26 Rule 9 of the Code of Civil Procedure for local investigation to ascertain whether or not the disputed passage, in fact, exists. By an order dated 8th June, 2006, learned trial Judge dismissed the application of the plaintiffs primarily on the ground that the alleged passage is not recorded either in the C.R. map or R.S. map of the concerned Dags and hence, it would be impossible for a Commissioner to ascertain the existence or otherwise of such passage by relayment of concerned maps. Learned Judge also observed that a Commission cannot be issued to collect evidence and further that the application for Commission was taken out by the plaintiffs after a long delay showing cavalier attitude of the plaintiffs. On these grounds, the application for Commission was rejected.

5. The plaintiffs made an application for review of the said order of the learned Judge wherein, inter alia, the plaintiffs pointed out that the sale deed nos.994 of 1930 and 8000 of 1971 clearly mention the existence of the passage concerned. These two sale deeds were not considered by the learned trial Judge while passing the order dated 8th June, 2006.

6. By an order dated 4th July, 2006, learned trial Judge allowed the review application and the plaintiffs’ petition for local investigation was allowed. Learned Judge held that indeed he had not taken into consideration the said two deeds while passing the earlier order and this warranted review of the earlier order.

7. Being aggrieved the defendants preferred an appeal being Misc. Appeal No. 71 of 2006 before the learned Additional Court of Civil Judge (Senior Division), Hooghly. By a judgment and order dated 9th January, 2008, learned first appellate court allowed the appeal and set aside the order of the learned trial Judge. Learned appellate court observed that as there is no existence of path in the record of right in respect of the ‘C’ Schedule property, appointment of a Survey Commissioner will create more complications and delay in disposal of the case.

8. Being aggrieved by the judgment and order of the learned first appellant court, the plaintiffs have come up to this court by way of the instant revisional application.

9. The revisional application was heard and disposed of by a learned Judge of this court by a judgment and order dated 24th June, 2011 whereby the application was dismissed.

10. The petitioners applied for review of the said order of this court on the ground that the findings in the order were in favour of the petitioners and as such, the revisional application should have been allowed. By an order dated 5th January, 2012 the learned Single Judge allowed the application for review and set aside the judgment and order dated 24th June, 2011 passed in C.O. 1271 of 2008 with a direction that the said C.O. 1271 of 2008 shall be heard in presence of both sides afresh. This is how the matter is before this court today.

11. Learned counsel for the petitioners submits that since there is a real dispute regarding the existence of the passage concerned, it is absolutely essential that the local investigation be carried out to ascertain the true state of affairs. The court will not