IMPORTANT POINT
Physical measurement of land should be made only by conducting local inspection.

Debasish Kar Gupta, J.—This revisional application is directed against Order No. 8 dated February 8, 2010 passed by the learned Civil Judge (Junior Division) 1st Court at Howrah in Title Suit No. 160 of 2000. By virtue of the impugned order, the learned Court below rejected the application filed by the petitioners/defendants under Order 39 Rule 7 of Code of Civil Procedure for holding local inspection of the suit property.

2. The plaintiffs/opposite parties filed the suit under reference for a declaration of his title over plot No.670 as also for a permanent injunction against the defendants restraining them from taking forcible possession thereupon by changing nature and character of the same. The petitioners filed the aforesaid application for appointment of a Commissioner for local inspection with regard to the points mentioned herein below:-

“1. To draw a rough sketch map showing the existing Public passage which runs on the North-Eastern corner side of plot No. 670, to take and measurement of length and breadth of the said unfinished public passage over the dag No. i.e., alleged Dag No.670.

2. To take measurement of length from pucca passage on the Northern side from Dag No.670 to meet the village road and to take a note the distance of the plaintiffs house and the existing public path.

To take any other local feature as may be pointed out at the time of Commissioner work.”

3. By virtue of the impugned order the learned Court below rejected the application with the observation that the aforesaid points could be brought on record by way of adducing evidence by some other way.

4. It is submitted on behalf of the petitioners that there was material illegality in rejecting the application and an interference of this Court is necessary to rectify culpable error. It is also submitted on behalf of the petitioners that only way of ascertaining the existence of a public path on plot No.670 is to take the length and breadth of the same together with measurement of pucca passage on the Northern side from Dag No.670 to meet the village road. It is also submitted on their behalf that any objection with regard to the report to be submitted by the Commissioner may be considered by the Court at a later stage.

5. Reliance is placed on behalf of the petitioners on the decisions of Mina Dasi v. Gouri Sankar Guha 1976 (1) Cal 640 and Subordinate Industries Field Officers’ Association v. Kapil Deo Prosad Singh 2006 (6) SCC 506 in support of the above submissions.

6. It is submitted on behalf of the plaintiffs/opposite parties that the existence of the path way on plot No.670 can be proved by way of adducing evidence. The report of the local commission may create further confusion with regard to the disputed question of facts and existence of a path way on the plot of land in question.

7. Reliance is placed on the decision of Institution of Engineers v. Bishnu Pada AIR 1978 Cal 296 in support of the submissions made on behalf of the opposite parties.

8. I have heard learned Counsel appearing for the respective parties and I have also taken into consideration the facts and circumstances of this case. Admittedly, the subject-matter involved in the suit under reference was existence of public path over plot No.670 as a continuation of that path of plot No.669. The opposite parties claimed non-existence of the aforesaid public path on plot No.670 while admitting the existence of that path on plot No.669, on the other hand, the petitioners also admitted the existence of a public path on plot No.669 as also claimed continuation of that path over plot No.670. As a result the application under Order 39 Rule 7 was filed by the defendants for actual measurement of the length and breadth of the public path for the purpose of enabling the Court to arrive at a conclusion with regard to existence of that path on plot No.670.

9. By way of rejecting the application under reference the learned Court below wrongfully directed the petitioners to pr