Ct. 08.08 No.

29 2025 C.O. 3794 of 2024

268 Bd.

Sri Snehangshu Ghosh –Versus-

Smt. Moumita Sabui Mr. Rajdeep Bhattacharya Mr. Sauradeep Dutta Mr. Himadree Ghosh … for the petitioner.

Md. Syed Nurul Arefin Mr. Rahul Singh Mr. Syed M. Arefin Mr. Srijit Roy Chowdhury …For the Opposite Party The order dated 16th August, 2024 passed by Learned Civil Judge (Junior Division), 1st Court, Chandernagore, Hooghly, in Title Suit No. 161 of 2016 is under challenge in the present application preferred by the plaintiff/petitioner.

By the impugned order learned court below rejected the plaintiff’s prayer for local investigation commission filed under Order XXVI Rule 9 on the ground that if such prayer is allowed it would amount to permit the plaintiff to create evidence and/or to fill up the lacuna of non-portrayal of the “A” schedule land in the L.R.Map.

Being aggrieved by that order, learned counsel appearing on behalf of the petitioner submits that the Court below has acted illegally and with material irregularity by rejecting the application under Order XXVI Rule 9 in as much as the defendant had not filed any written objection against the said application. He further submits that for adjudication of the real controversy between the parties such local investigation commission is badly needed. Md. Arefin, learned counsel appearing on behalf of the opposite party supporting the order impugned submits that the court below was of clear view that the identification and physical existence of the “A” schedule property has not been established as there is no existence of the schedule ‘A’ property in the L.R.Map, though plaintiff claimed that his name has been recorded in the LR record of rights. The court below further held that Court cannot permit the plaintiff to create evidence by allowing the local investigation commission.

Learned counsel for defendants further submits that the defendant/opposite party herein raised verbal objection against the said application before the Court below. Order impugned is quite justified in view of the fact that the objection for local investigation commission cannot be allowed to fish out evidence and as such order impugned does not call for interference by this Court.

On perusal of the copy of plaint it appears that in Title Suit No. 161 of 2016, the plaintiff claimed that he acquired “A” schedule suit property by way of registered deed of gift executed by his mother comprising two satak of land in plot no. 460 corresponding to LR Plot no. 483. His further contention in the plaint is that “B” schedule property is situated adjacent western side of “A” schedule property and to curtail the pre-emption right of the plaintiff, over “B’’ schedule property, the defendant is trying to excavate land from the plaintiff’s “A” schedule property and thereby trying to diminish the demarcation line between “A” and “B” schedule property.

Petitioner’s further contention herein is that during pendency of the pre-emption Misc. Case, if the defendant succeeds in amalgamating “A” and “B” schedule property, the plaintiff will certainly loss the pre-emptive right as the plaintiff filed the pre-emption case being Pre-emption Case no. 24 of 2010, as co-sharer as well as adjoining land owner with longest common boundary and for that reason the right title and interest of the plaintiff has been clouded, though the defendant has no iota of right title or interest in the “A” schedule property. He also contended that it further appears from the copy of the deed of gift being No. 2068 dated 26th September, 2023 that plaintiff’s mother gifted the property mentioned in the schedule to the gift which is two satak out of six satak of land being LR plot no.

483.

I have considered the respective submissions.

In the application under Order XXVI Rule

9, the plaintiff has made specific averments that during pendency of the suit, defendant installed iron pillars surrounding the “A” schedule property and thereby trying to encroach the land of the plaintiff.

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