JUDGMENT :

Ajoy Kumar Mukherjee, J.

1. Petitioner/defendant challenged herein order no. 91 dated 12.02.2020 passed by learned Civil Judge, (Junior Division), 2nd court Ranaghat, Nadia in Title Suit No. 78 of 2010. By the order impugned learned court below accepted local investigation Commission report provisionally and fixed the next date for hearing argument of the suit.

2. The brief background of the present case is that one Kumar Krishan Mondal since deceased, father of the petitioner and the original opposite party no. 1 (predecessor of present opposite parties) was the absolute owner of the land measuring about 8.25 decimal in plot no. 452 by way of deed of conveyance dated 24th August, 1955. The said opposite party no. 1, since deceased purchased 5 decimal of the land of the suit property out of said 8.25 decimal of the land from his father aforesaid Kumar Krishna Mondal by a registered deed dated 10.07.1969. Thereafter the said Kumar Krishna died intestate leaving behind legal heirs i.e. the plaintiff/opposite party no.1 herein, defendant/petitioner herein and another son Bimal Mondal and his widow and two daughters who jointly inherited the remaining 3.25 decimal of land of their father in the suit plot.

3. It is submitted that on the Eastern side of the suit property there is a road namely Fulia Station Road and on both sides of the said road, there is road side land flank and that the frontage of the opposite party no.1 is 24ft wide and the opposite party No.1/plaintiff has a right of ingress or egress through the said 24 feet frontage from his residential house. It is further alleged in the plaint that the petitioner/defendant has occupied and has constructed a shop room in front of the residential house of the opposite party occupying the said road side land, which is causing extreme difficulties for the plaintiff/original opposite party no. 1 and his family members to ingress and egress of his own residential house through the said road side land/road flank. It is further alleged that from the very beginning of the construction of the said shop room, the original opposite party no. 1 raised his objection but the petitioner never paid any heed.

4. In the aforesaid background the original opposite party no. 1 as plaintiff instituted Title Suit no. 78 of 2010 against the defendant/ petitioner. In the said suit plaintiff/opposite party no. 1 filed an application under Order XXVI Rule 9 of the Code of Civil Procedure for local investigation commission and learned Trial Court allowed plaintiff’s aforesaid prayer. Thereafter learned investigation commissioner after investigation submitted his report on 22nd September, 2014. After more than three years of filling report by the commissioner, the petitioner herein filed a written objection before the Trial Court against the local investigating commissioner’s report on several grounds and thereafter petitioner herein also cross examined the learned commissioner.

5. Learned court below after the examination passed the impugned order, whereby he accepted the investigation commissioner’s report provisionally.

6. Being aggrieved by the said order Mrs. Deblina Lahiri learned counsel appearing on behalf of the petitioner submits that the court below while accepted provisionally the commissioner’s report has made some finding which are contrary to the admissions made by learned advocate commissioner in the course of cross examination. Mrs. Lahiri further argued that the Trial Court while passed the order had placed reliance upon this High Court’s judgment in M/s Roy and Co. and Another Vs. Smt. Nani Bala Dey and others reported in AIR 1979 Cal 50, but learned court below has completely overlooked the fact that where commissioner’s integrity or carefulness is not questioned and where leaned commissioner did not blindly accept the assertion or either party, then the court should not act as an expert and overrule the commissioner’s report. However in the present case both the integrity and c