JUDGMENT :

AJOY KUMAR MUKHERJEE, J.

1. Present application under article 227 of the constitution of India has been preferred challenging order no.55 dated 08.06.2023 passed by learned Civil Judge (Senior Division), Darjeeling in Title Suit No. 07 of 2021.

2. The petitioner herein as plaintiff filed an application under order XI rule 12 of the code of the Civil Procedure (CPC) before the court below, with a prayer for direction upon the defendant to produce building plan as allegedly approved by the Darjeeling Municipality in favour of defendant in respect of his construction over the disputed property. The defendant/opposite party herein filed written objection against the said Application contending that the construction was made by the defendant long back and plaintiff with a mala-fide intention has filed the Application, though the instant case has got no relation with construction of any building. Hence the question of production of approved building plan by the defendant does not arise.

3. Learned court below upon hearing both the parties found that the defendant in her written objection to the injunction Application at paragraph 20 has stated that the construction as alleged by the plaintiff is upon the land of defendants and he further observed whether the same was done on the land of the plaintiff or not, cannot be made out by mere production of the building plan.

4. Before going to further details let me go through the point of controversy between the parties as raised in the suit as well as in connection with the said Application. On perusal of the amended plaint as filed by the petitioner herein in Title suit no. 7 of 2021, it appears that plaintiff in paragraph 25 specifically alleged that he lodged a complain on 02.03.2021 to I/C Sadar Darjeeling stating that the defendant in violation of injunction order raising unauthorized construction and for which he also initiated a contempt proceeding but even after lodging the written complaint on 02.03.2021 and even after filing the Misc. Case for violation of the injunction order, defendant taking advantage of lock down situation due to Covid-19 pandemic, have deliberately and continuously constructing the unauthorized construction erecting RCC pillars by encroaching the “A” schedule suit land and said unauthorized construction work has been extended upto the top floor from the ground level and thus the defendant has more or less completed the said unauthorized construction illegally.

5. In the prayer portion of the plaint, the plaintiff has also prayed for decree for directing the defendant to dismantle and removal of the unauthorized construction/RCC pillars which are erected over the “A” schedule suit land from its ground level and other construction work existing upto the top floor of the two storied building.

6. Plaintiff has also prayed in the plaint for a declaration that he is the absolute owner of “A” schedule land having absolute right title interest thereon. Defendant/opposite party herein, in para 20 of written objection against plaintiff’s injunction application has stated that the construction, as alleged by the plaintiff is upon the land which is owned and possessed by the defendant

7. It also needs to be mentioned in this context that according to plaint case, the plaintiffs have acquired a piece of land measuring 157 poles situated at schedule mentioned suit property and out of which he transferred a piece of land measuring about 30 poles out of her total 157 poles to the defendant by virtue of registered deed of sale. Said 30 poles of land sold to defendant has been described as schedule “B” to the plaint. It is further alleged in the plaint that in the month of July 2019 plaintiff was temporarily absent from the said property due to medical treatment and taking advantage of the same the defendant had illegally occupied a portion of 1500 sq. ft. of plaintiff’s land and have constructed septic tank in and over said 1500 sq. ft., occupied portion of land which ha