Judgment:
1. Challenge is to the order no.201 dated April 2, 2009 passed by the learned Civil Judge (Junior Division), Second Court, Hooghly in Title Suit No.58 of 2000 thereby allowing a petition under Order 39 Rule 7 of the Code of Civil Procedure filed by the defendants.
2. The original plaintiff instituted a title suit being Title Suit No.58 of 2000 praying for a decree of declaration and permanent injunction against the opposite parties. In that suit, the opposite parties entered appearance and they are contesting the suit by filing a joint written statement. During pendency of the suit, in the year of 2000, the plaintiff filed an application for local inspection which was allowed by the learned Trial Judge and the learned commissioner appointed in the matter submitted his report which was duly accepted by the learned Trial Judge. Subsequently, the substituted plaintiff and the opposite party nos.11 to 14 filed another application for local inspection which was allowed by the learned Trial Judge and the learned commissioner submitted his report which was also accepted by the learned Court. Thereafter, the defendants/ opposite parties filed a petition for local inspection on some points over which the commissioner appointed earlier submitted their reports. In spite of that, the learned Trial Judge allowed the application for local inspection. Being aggrieved, the plaintiff/petitioner has preferred this revisional application.
3. Now, the question is whether the impugned order should be sustained.
4. Upon hearing the learned counsel for the parties and on going into the materials on record, I find that previously the two commissioners submitted their reports over the selfsame property, that is, the plot no.1815, as described in the plaint. By the proposed inspection, the defendants have wanted to hold an inspection over the selfsame plot no.1815 to the effect for drawing a rough sketch map showing possession of the ka schedule passage in plot no.1815 as well as the dwelling units of the defendant in the northern side of the said passage and also depicting the construction of tin shed on the said passage, and to report whether there is a newly build shed supported by bamboo post and other consequent steps. The plaintiffs filed the suit for the following reliefs:-
That the plaintiff and the proforma defendants have the joint ownership over the plot no.1815 and that the defendant nos.1 to 6 should be restrained from discharging any water from their land over the plot no.1814 which is exclusively possessed by the plaintiff and the proforma defendants and also for mandatory injunction for removing the earth and debris of the house of the defendant from the said plot.
5. Thus, I find that the plaintiff has claimed exclusive possession of the plot no.1815 along with the proforma defendants and so they have prayed for reliefs in the suit accordingly. The plaintiff has also attached one rough sketch map in support of the possession of the lands by the parties, vis--vis, the plot no.1815. Since the learned commissioners had already submitted their reports with regard to the plot no.1815, I hold, that further inspection on the points as noted earlier is not at all necessary and if the order impugned is allowed to continue, it will be nothing but an abuse of the process of the Court causing delay in the disposal of the suit.
6. It is the specific case of the plaintiff that he did not raise any construction over the plot no.1815 and that the defendants had no right to use that plot to go to their house. It is also the contention of the plaintiff that the said plot came to an end near the khamar, cow-shed and godown situated on the plot no.1817 and that the said plot had never went up to the house of the defendants.
7. Having considered the contentions of the parties and the above facts, I am of the view that there is need of holding an inspection further over the plot in question. The learned Trial Judge has unnecessarily allowed the application for local inspection filed by the defendants and thus, he has failed to exercise the jurisdiction vested in him properly. For that reason, the impugned order cannot be supported.
8. Accordingly, this application is allowed. The order impugned is hereby set aside.
9. Since the suit is of the year 2000, the learned Trial Judge shall make an endeavour to dispose of the suit within six months from the date of communication of this order.
10. Considering the circumstances, there will be no order as to costs.
11. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.