CO/2928/2025 of SUMITRA HALDER Vs SHIBA PROSAD BAIDYA AND ORS on 25 September 2026

1. This revisional application has been preferred challenging the legality and propriety of the order dated 3.6.2025 passed by the learned Civil Judge (Jr. Div.), 3rd Court, Baruipur, South 24 Parganas, on an application filed by the plaintiff under Order 26 Rule 9 of the Code of Civil Procedure, 1908 (hereinafter referred to as the ‘Code’), whereby the said application was allowed and a copy of the order was forwarded to the learned Civil Judge (Jr. Div.), 1st Court, Alipore, for appointment of a survey-passed Advocate Commissioner to hold local investigation over the suit property.

2. Mr. Roy, learned Advocate appearing for the defendant/petitioner, submits that the R.S. operation was concluded as far back as in the year 1950-60 and, upon completion thereof, the R.S. Record of Rights was finally published, on the basis whereof the mouza map was prepared. Subsequently, upon completion of the L.R.

operation, the L.R. Record of Rights was also finally published. He submits that, in view thereof, by taking any subsequent action, the entries recorded in the finally published Records of Rights and the mouza map prepared on the basis thereof cannot be permitted to be altered. He further submits that, in the present case, the plaintiff/opposite party is, in substance, seeking to alter the entries recorded in the Record of Rights as well as the corresponding features reflected in the mouza map.

3. In the present case, the petitioner’s application preferred under Order 39 Rules 1 and 2 of the Code, praying for an interim order, was turned down taking note of the fact that the plaintiff had failed to satisfy the learned Court that he had a good prima facie case in his favour. He submits that the learned Court below thereafter misdirected itself in allowing the application preferred by the plaintiff under Order 26 Rule 9 of the Code, without giving due regard to the aforesaid aspect. According to him, such circumstances furnish sufficient ground for interference with the order impugned in the present revisional application.

4. In response, learned Advocate appearing for the plaintiff/opposite party submits that, in the present case, the suit property has been described in the ‘Ga’ Schedule appended to the plaint. However, while considering the application for injunction preferred by the plaintiff, the learned Court below observed that the plaintiff had failed to establish, by reference to the relevant documents, the exact identification and location of the property described in the ‘Ga’ Schedule and, accordingly, declined to grant any interim order. He submits that, while refusing such interim relief, liberty was granted to the plaintiff to prefer an application seeking appointment of a survey-passed Advocate Commissioner. Pursuant to such liberty, the plaintiff preferred the said application, whereupon the learned Court below passed the order impugned for the purpose of identifying the suit property. He, therefore, submits that, in the facts and circumstances of the case, no interference with the order impugned is warranted.

5. Heard the learned Advocate appearing for the parties and perused the materials on record.

6. Record reveals that the plaintiff/opposite party had instituted a suit praying for a decree of declaration and permanent injunction in respect of the properties described in Schedules ‘Ka’ and ‘Ga’ appended to the plaint. In both the ‘Ka’ and ‘Ga’ Schedule properties, apart from furnishing the particulars of certain parcels of land, two hand-drawn sketch maps have also been appended, wherein one portion has been shown as ‘path’. However, the record reveals that, by an order dated 18.2.2020, the learned Court below observed that the plaintiff’s side had failed to establish the exact location and identity of the ‘Ga’ Schedule property with reference to the relevant documents and, accordingly, did not find any justification to grant an interim order in favour of the plaintiff. At the same time, liberty was granted to the plaintiff to file an appropriate application seeking appointment of a survey-passed Commissioner. Pursuant to such liberty, the plaintiff preferred an application under Order 26 Rule 9 of the Code.

7. Needless to mention, the power conferred under Order 26 Rule 9 of the Code cannot be invoked and/or exercised for the purpose of enabling any party to the suit to collect evidence. However, such power can certainly be exercised where the Court considers that a commission for local investigation is necessary for the purpose of elucidating any matter in dispute or for ascertaining the market value of any property, the amount of any mesne profits or damages, or the annual net profits.

8. In the present case, the learned Court below, upon consideration of the pleadings and the schedules appended thereto, found that the description furnished in the plaint was not sufficient to enable the Court to identify the suit property with precision and, accordingly, considered it necessary to appoint a survey-passed Advocate Commissioner for the proper identification of the suit property.

9. I do not find any material on record which would persuade my judicial conscience to hold that, in passing the impugned order, the learned Court below had either exceeded its jurisdiction or exercised the jurisdiction vested in it erroneously in allowing the application preferred under Order 26 Rule 9 of the Code.

10. Accordingly, this revisional application stands dismissed. However, there shall be no order as to costs.

11. However, it is clarified that, at the time of such investigation, the parties shall remain at liberty to produce all relevant documents in support of their respective contentions. In the event any such documents are produced, the learned Commissioner shall take the same into consideration along with other relevant materials before preparing his report and submitting the same before the learned Court below.

(Partha Sarathi Chatterjee, J.)