Item No. 11

02.01.2026

Court. No. 6

GB

C.O. 4335 of 2025

Minati Roy & Ors.

Vs.

Ashim Ghosh @ Khokan Ghosh & Ors.

Mr. Partha Pratim Roy,

Mr. Souvik Das,

Mr. Rudranil Das

… for the Petitioners.

Mr. Aniruddha Chatterjee, Sr. Adv.,

Mr. Uday Sankar Chattopadhyay,

Mr. Suman Sankar Chatterjee

… for the Opposite Party Nos.23 & 24.

1. The petitioners are aggrieved by an order dated

November 13, 2025, passed by the learned Civil Judge (Junior Division) Bongaon in Title Suit No.31 of 2004.

2. By the order impugned, the learned court allowed an

application for local investigation filed by the defendant nos.5 and 6, who are the opposite parties nos.23 and 24. As the other opposite parties are not contesting the suit, service of this revisional application upon the said opposite parties is dispensed with. The opposite party nos.23 and 24,

who are the defendants in the suit are represented.

3. The learned court allowed the application, upon

holding that, the points considered at the time of local inspection by an advocate commissioner and the points for local investigation were distinct and separate. The issue of local inspection was restricted to an alleged construction/obstruction on the village road, which according to the plaintiffs was done in violation of the order of injunction. Thus, the report

filed by the learned advocate commissioner and the issues which were decided by the court upon accepting the report of the learned advocate commissioner, would not operate either as res judicata or constructive res judicata and the application for local investigation should not be disallowed on such basis.

4. The local inspection was conducted in a contempt proceeding. The local inspection did not record any measurement of the suit plots. The said report was based on physical features that were observed by the learned advocate commissioner. Under such circumstances, the application for local investigation was allowed.

5. Mr. Roy, learned advocate for the petitioners submits that the learned court mechanically allowed the application for local investigation, without considering that the points for local investigation were beyond the issues to be decided in the suit and wholly irrelevant. Mr. Roy contended that, the existence of the road over the plot nos.41, 103 and 105 of Mouza – Gopalnagar was an admitted position. Even the defendants, in the written statement, admitted that there was an existence of a village road. Several orders were passed by the High Court in proceedings arising out of the injunction application, which recorded the existence of the village road. The High Court also acknowledged that the report of the advocate commissioner was conclusive, insofar as, the points referred to the said advocate commissioner for inspection were concerned.

6. Under such circumstances, Mr. Roy prays that the order impugned should be set aside and the suit should proceed on the basis of evidence that shall be led by the parties. Mr. Roy refers to the averments in the plaint as also the prayers in support of his contention that the reliefs claimed were restricted to a pathway/road on the plot nos.103 and 105. Accordingly, a declaration was sought for that, plot nos. 103 and 105 comprised of a village road, and the defendants did not have any authority or right to deny usage of such village road by the plaintiffs/petitioners.

7. Mr. Chatterjee, learned senior advocate appearing on behalf of the defendant nos.5 and 6 in the suit, at whose instance the application for local inspection was allowed, sumbits that the petitioners claimed easementary right or right of way. Thus, there was already a contradiction in the plaint case, inasmuch as, an easementary right could not be claimed over a village road. An easementary right can be claimed over a private pathway or a private road, user of which may have been permitted by the owner or owners thereof. Referring to the written statement, Mr. Chatterjee contends that the specific case of the defendant nos.5 and 6 in the written stat