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IN THE HIGH COURT AT CALCUTTA CIRCUIT BENCH AT JALPAIGURI
BIVAS PATTANAYAK
Ananda Chandra Paul – Appellant
Versus
Santosh Roy – Respondent
Judgment :
Bivas Pattanayak, J.
1. This application has been preferred by the petitioner-plaintiff under Article 227 of the Constitution of India challenging Order No.100 dated 20th September, 2023 passed by learned Civil Judge (Junior Division), 2nd Court, Jalpaiguri in Title Suit No. 112 of 2012 rejecting the prayer of the petitioner under Order XXVI Rule 9 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘Code’).
2. The brief fact of the case in nutshell is that the petitioner-plaintiff filed a suit for declaration and permanent injunction before the learned Trial Court registered as Title Suit No. 112 of 2012. During the pendency of the suit, the opposite parties-defendant nos.1 to 9 trespassed into a portion of the suit land by dispossessing the petitioner-plaintiff. Accordingly, the petitioner-plaintiff by way of amendment of the plaint inserted a prayer for a decree of recovery of possession of the suit property. The suit was taken up for examination of the witnesses. At the said stage of examination of witnesses, the petitioner-plaintiff filed an application under Order XXVI Rule 9 of the Code for local investigation commission of the suit property by survey c
Boundary disputes necessitate the appointment of a local Commissioner for clarity, ensuring courts fulfill the legal requirement of definitive evidence before adjudication.
The appointment of an Advocate-Commissioner is unwarranted in the absence of genuine ambiguity regarding property identification; the burden to prove ownership lies with the plaintiffs.
Rule 9 of Order 26 of Code of Civil Procedure empowers Court to issue commission to make local investigation which may be required for purpose of elucidating any matter in dispute.
A plaintiff cannot seek a Local Commissioner to gather evidence if there is no substantial basis for such request, particularly when the burden of proof lies with them regarding ownership claims.
The appointment of an Advocate Commissioner is unnecessary when sufficient evidence exists to determine the facts in a partition suit.
In view of the nature of the dispute between the parties as regards the demarcation of the disputed land and the High Court having not addressed that issue by appointment of a local Commission for de....
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