Prasanna Sen @ Prasanna Deb Sen v. Satish Das And ORS

08.06.2023.

Ct. 3 skc In the High Court at Calcutta Circuit Bench at Jalpaiguri Civil Revisional Jurisdiction CO 45 of 2023 Prasanna Sen@ Prasanna Deb Sen -versusSatish Das & Ors.

Mr. Bikash Singha,Adv.

....For Petitioner.

Mr. Sudip Guha,Adv.

....for respondent.

Counsel for the respective parties are present. The petitioner has filed affidavit of service, let the same be kept with the record. The petitioner being the plaintiff in Title Suit No. 26 of 2020 pending before the learned Civil Judge (Junior Division), 2nd Court, Jalpaiguri had filed an application under Order 26 Rule 9 read with Section 151 of the Code of Civil Procedure, 1908 for appointment of Commissioner to ascertain the following:

(a) To measure and survey the suit land described in the Schedule of the plaint;

(b) To measure and ascertain the boundaries of the suit land and to determine the proper location thereof in accordance with the available R.S./L.R. Sheet map of

Mouza - Baikur Gour Gram, Sheet No. 6, District- Jalpaiguri, and to prepare a sketch map of the same showing all measurements;

(c) To note the local features, if any, in respect of the suit land, and to depict them in the sketch map thereof.

The plaintiff has filed the suit praying for following relief:

(i) A decree for perpetual injunction restraining the defendants and/or anyone claiming through or under them from coming upon the suit land and/or disturbing the peaceful possession of the plaintiff over the suit land in any manner whatsoever and/or from committing any acts and actions prejudicial to the interest of the plaintiff over the suit land;

(ii) A temporary injunction restraining the defendants and/or anyone claiing through or under them from coming upon the suit land and/or disturbing the peaceful possession of the plaintiff over the suit land in any manner whatsoever and/or from committing any acts and actions prejudicial to the

interest of the plaintiff over the suit land till disposal of the instant suit;

(iii) Costs of the suit;

(iv) Any other relief or reliefs which the Court thinks that the plaintiff is entitled to under law and equity.

The plaintiff intending that the Commissioner should measure and also to ascertain the boundaries of the suit property. The learned Civil Judge (Junior Division) while dismissing the application has rightly held that the purpose for which the plaintiff has filed the application will not serve any purpose for adjudication of the suit. This Court has perused the materials on record including the application filed under Order 26 Rule 9 and the order impugned.

This Court finds that the plaintiff has filed the suit praying for perpetual injunction restraining the defendants entering and disturbing the possession of suit property. The plaintiff has described the suit schedule property in the plaint. The purpose for which the application is filed for appointment is no way connected for adjudication of the suit. The learned Judge has not committed any error by rejecting the application. The impugned order does not require any interference.

Accordingly, CO No. 45 of 2023 is thus dismissed.

(Krishna Rao, J.)