Bench:

Mr. Justice Bhishmadev Chakrabortty

Civil Revision No. 847 of 2012 A. Rahman alias Abdur Rahman

Biplob and others ......petitioners

-Versus-

Haji Mojibul Hoque ......opposite party Mr. Mohammad Mubarak Hossain with

Mr. Enayet Ullah Nadim, Advocates

...... for the petitioners

-Versus-

Mr. Shishir Kanti Mazumder with

Ms. Alo Mandal, Advocates

......for the opposite party

Judgment on 30.04.2024

Leave was granted and rule was issued calling upon opposite party 1 to show cause as to why the judgment and order of the District Judge, Cumilla passed on 10.01.2012 in Civil Revision No. 88 of 2011 rejecting the revision affirming the judgment and order of the Senior Assistant Judge, Chauddagram, Cumilla passed on 12.10.2011 in Title Suit No. 42 of 2009 rejecting the application under order 39 Rule 7 of the Code of Civil Procedure (the Code) for holding Local Inspection suffers on an error of an important question of law resulting an erroneous decision occurring failure of justice and/or such other or further order or orders passed to this Court may seem fit

and proper.

At the time of issuing rule all further proceedings of Title Suit No. 42 of 2009 was stayed for a limited period which was subsequently extended till disposal of the rule.

Facts relevant for disposal of the rule, in brief, are that opposite party 1 herein as plaintiff instituted the suit praying for permanent injunction against the defendants for .11 acres of land as detailed in the schedule to the plaint. He claimed of getting the aforesaid land in execution of decree of Title Suit No. 71 of 2001. The defendants appeared in the suit and filed written statement denying the facts as stated in the plaint. In the written statement the defendants claimed that they are in possession of the suit land and as such the suit would be dismissed.

After examination of plaintiff’s witnesses and during cross examination of defendants’ witness 1 the defendants filed an application under Order 39 Rule 7 read with section 151 of the Code on 12.10.2011 for holding Local Inspection stating grounds that in the plaint the plaintiff stated the facts that there is a poultry farm over the suit land but the defendants in the written statement stated that there is no such farm and that defendant 1 has been residing therein by erecting house thereon and as such an Advocate Commissioner is required to be appointed to ascertain the fact whether there is any poultry farm over the suit land.

The learned Assistant Judge, Chauddagram, Cumilla heard the application and by order dated 12.10.2011 rejected the same assigning reason that such an application at this stage of the suit could not be allowed.

Being aggrieved by the aforesaid judgment and order, the defendants filed a civil revision before the District Judge, Cumilla who on ground of maintainability rejected the same and affirmed the judgment and order passed by the Assistant Judge which prompted the defendants to approach this Court with this revision under section 115(4) of the Code upon which leave was granted and rule was issued.

Mr. Mohammad Mubarak Hossain, learned Advocate for the petitioners takes me through the materials on record, particularly the application for holding Local Inspection and the orders passed by the courts below and submits that the point to be decided in disposing such an application is related with the fact. The petitioners prayed for Local Inspection as to whether there is poultry farm in a tin shed building over the suit land and whether the tin shed building consists of five rooms and anyone resides therein and also the nature and character of the suit land. The aforesaid prayer made in the application is no way related with the possession of parties over the suit land. The petitioner did not ask for holding Local Inspection to find possession of the parties in the suit land. The possession in the suit land is not the issue here. No extra evidence is to be required, if the application for holding L