JUDGMENT :

(Biswaroop Chowdhury, J.) :

1. The petitioner before this Court is the defendant in a suit for declaration and partition before Learned Civil Judge (Senior Division) at Barasat being Title Suit No – 237 of 2008 and is directed against the order dated 7-05-2022 passed by the Learned Judge rejecting the application filed by the petitioner under order 26 Rule 9 of the Code of Civil Procedure.

2. The case of the petitioner may be summed up thus:

1. The opposite parties instituted Title Suit praying decree for declaration, partition and injunction before the Learned 2nd Court Civil Judge Senior Division at Barasat.

2. The petitioner appeared before the Learned Court and contested the suit, and a preliminary decree was passed.

3. Pursuant to the passing of preliminary decree survey Commissioner was appointed who upon completion of commission work submitted his report. The report submitted by survey commissioner was rejected by the Learned Trial Court.

4. The petitioner pursuant to the rejection of the report filed application under Order 26 Rule 9 of the Code of Civil Procedure with a prayer for conducting survey on the following points.

A. Whether any construction is going on over any portion of the suit property or not and if so, the construction regarding its length and breadth.

B. Whether there is a common passage over the suit property or not and if there is passage measuring the same towards East or West.

C. Whether any construction or pillar/boundary was made upon the common passage or not? And if made then to state whether it was constructed according to building plan and municipal law? Whether any partition plan existed between the parties or not?

D. Whether plaintiff or his promoter made the construction upon the plaintiff’s allotted land or upon the common passage? If encroached measure the area of encroachment.

E. Local features.

F. Rough sketch map.

3. The opposite parties/plaintiff’s contested the application by filing written objection. By order dated 07/05/2022, learned trial Court was pleased to reject the application under Order 26 Rule 9 of Code of Civil Procedure filed by the Petitioner/Defendant. The petitioner being aggrieved has come up with the instant application. It is the contention of the petitioner that the Learned Trial Court erred in law and fact in erroneously observing that the points as regards which the defendant has sought for a report were not the matters of dispute in the suit. It is further contended that the Learned Trial Court ought to have considered the fact that during the pendency of the suit the said Satyandranath Dutta have appointed a promoter and/or developer in order to develop his portion of the property that is the property demarcated as plot no ‘A’, and marked with Red border in the plan of the said partition deed dated 14-12-1982. It is also contended that the Learned Trial Court ought to have considered the fact that the plaintiff’s/opposite parties are also carrying on construction in such a manner in order to convert the common passage of the suit property in to main entrance of the premises demarcated as plot no. A.

4. Heard Learned Advocate for the petitioner and Learned Advocate for the opposite parties Learned Advocate for the petitioner submits that the subject matter of the Writ Petition being WPA 1184 of 2021 and the application for appointment of survey Commissioner under order 26 Rule 9 of the Code of Civil Procedure were different, which the Learned Trial Court failed to appreciate. Learned Advocate draws attention to the Order passed in the Writ Application being WPA – 1184 of 2021 where the Learned Judge of this Court while disposing the writ application was pleased to direct the Municipal Authority to consider the representation with regard to unauthorized construction only and not enter into or decide any private dispute of the parties regarding right title and interest in respect of the said land. Learned advocate for the opposite parties submits that