JUDGMENT :

AJOY KUMAR MUKHERJEE, J.

1. Being aggrieved and dissatisfied with the impugned order no. 128 dated 07.01.2020 passed by the learned Civil Judge (Senior Division), 1st Court, Malda in O.C. Suit No. 154 of 1999, present application under Article 227 of the Constitution of India has been preferred.

2. In the present case, the plaintiff/petitioner herein filed suit for declaration of title with a prayer for recovery of possession. The plaintiff’s further case is that he had purchased ‘Ka’ schedule property to the plaint and on 22.04.1999, taking advantage of the absence of the plaintiff, the defendants dispossessed the plaintiff from ‘Ga’ schedule property out of ‘Ka’ schedule property described in the plaint. The measurement of ‘Ga’ schedule described in ‘Gha’ schedule to the plaint. The encroached portion is 12 ft. 4 inches in length and 8 ft. 2 inches in breadth.

3. In the said suit, plaintiff also filed an application under Order XXVI Rule 9 read with Section 151 of the Code of Civil Procedure praying for local investigation commission for ascertainment of allegation of encroachment. Accordingly, commissioner was appointed who submitted his report stating that the suit land is the part of the residential old room occupied by the defendants and commissioner also stated that the area of the ‘Ga’ schedule property is 5’ x 16’ = 80 sq. ft. out of 0.06 acre of land and as per sketch map annexed with report the encroached land is the 16 ft. long towards North to South direction and 5 ft. wide in East to West direction.

4. The petitioner filed objection against the said report stating that the encroached land is measuring with 12’4” x 8’2” = 100.72 sq. ft. but the pleader commissioner erroneously mentioned the measurement of the encroached land as 5’ x 16’ = 80 sq. ft. without relayment in gross violation of court’s order of appointment of commissioner and accordingly petitioner herein prayed for fresh commission.

5. The learned commissioner was examined before acceptance of the report and finally, learned Civil Judge (Senior Division) accepted the report of the pleader commissioner by an order dated May 20, 2017. Being aggrieved by the said order dated May 20, 2017 the petitioner herein preferred a revisional application under Section 115 /115A of the Code of Civil Procedure before learned Additional District Judge, Malda who after hearing both the parties set aside the order dated May 20, 2017 passed by the learned Civil Judge (Senior Division), Malda and granted liberty to the petitioner to file petition afresh for local investigation commission by another pleader commissioner.

6. In term of the order dated May 22, 2018 passed by the learned Additional District Judge, 5th Court, Malda in C.R. No. 3 of 2017, petitioner filed an application afresh for local investigation by another pleader commissioner and the learned court was pleased to allow the said prayer. The defendant/opposite parties being dissatisfied with the order dated 22.3.2018 challenged the same before High Court in CO No. 1248 of 2018 under Article 227 of the Constitution of India alleging that the revisional court below improperly exercised its authority in connection with application under Section 115A of the Code of Civil Procedure, while setting aside the order dated May 20, 2017, accepting the investigation commissioner’s report as sai