IN THE SUPREME COURT OF BANGLADESH

HIGH COURT DIVISION

(CIVIL REVISIONAL JURISDICTION)

Present:

Mr. Justice Zafar Ahmed

Civil Revision No. 402 of 2022

In the matter of:

Jamrul Bahar and others

...Plaintiff-petitioners -Versus-

Makhon Lal Das and others

…Defendant-opposite Parties Mr. Mahmudul Mursalin, Advocate

...For the petitioners Mr. Sudipta Arjun, Advocate

.........For the opposite parties

Heard on: 20.08.2024 Judgment on: 21.08.2024

Zafar Ahmed, J.

The instant revisional application filed under Section 115(4) of the Code of Civil Procedure (CPC) at the instance of the plaintiff petitioners, this Court on 08.02.2022 granted leave and issued a Rule calling upon the defendant-opposite parties to show cause as to why the  judgment  and  order  dated  21.09.2021  passed  by  the  learned District Judge, Sylhet in Civil Revision No. 33 of 2020 rejecting the revisional application and affirming the order dated 13.09.2020 passed by the learned Assistant Judge, Beanibazar, Sylhet in Title Suit No. 03

of 2017 rejecting the plaintiffs’ application under Order 26 rule 9 read with Section 151 of the CPC.

At the time of issuance of the Rule, this Court passed an interim order staying all further proceedings of Title Suit No. 03 of 2017 and further  directed  the  parties  to  maintain  status  quo  in  respect  of possession and position of the suit land.

The defendant-opposite party No. 2 Haji Md. Tutiur Rahman Khan has entered appearance in the Rule.

The present petitioners as plaintiffs filed Title Suit No. 3 of 2017 in the Court of Assistant Judge, Beanibazar, Sylhet impleading one Makhon Lal Das as sole defendant. Subsequently, the defendant Nos. 2-4 were added in the suit. In the said suit, the plaintiffs prayed for  declaration  of  title  simpliciter  in  respect  of  the  property  as described in the schedule of the plaint based on farog (g¡lN) issued in the name of the plaintiffs’ predecessor.

The defendant Nos. 2-4 filed written statement in the suit. The plaintiffs filed an application for local investigation under Order 26 rule 9 read with Section 151 of the CPC. The trial Court, vide order dated 13.09.2020 rejected the said application for local investigation. Being aggrieved, the plaintiffs filed Civil Revision No. 33 of 2020 before  the  learned  District  Judge,  Sylhet,  who,  vide  order  dated 21.09.2021  rejected  the  same,  which  has  been  challenged  in  the instant revision.

I have heard the learned Advocates of both sides and perused the materials on record.

 The prayer portion of the application for local investigation filed by the plaintiffs is quoted below:

“

”

The learned Advocate appearing for the opposite party points out that in the schedule of the application for local investigation the plaintiffs travelled beyond the plaint which is apparent on the face of the record.

The schedule of the plaint runs as follows-

a a

It appears that the words appearing in the schedule of the application for local investigation are absent in the

schedule of the plaint.

It  is  stated  in  paragraph  No.  4  of  the  application  for  local investigation, “

”

Order 26 rule 9 of the CPC runs as follows:

“R. 9 Commissions to make local investigation- In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in  dispute,  or  of  ascertaining  the  market-value  of  any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person  as  it  thinks  fit  directing  him  to  make  such investigation and to report thereon to the Court within such time not exceeding three months as may be fixed by the Court.

Provided  that  the  Court  may  on  the  prayer  of  the Commissioner and on sufficient cause being shown, extend the time.”

The object of local investigation is to obtain evidence which from its very nature can only be obtained on the spot and to elucidate any point which is left doubtful on evidence taken before the Court. Where plot number and khatian number are not mentioned in the sale deed  executed  before  settlement  operation  local  investigation  is necessary, but where the identity of the suit land is not challenged in the  written  statement,  question  of  holding  local  investigation  for identification of the suit land does not arise (2 BLC 195).

It is held in Lakshmi Bazar Shahi Masjid Committee and another vs. St Francis Xavier’s Girls High School, 51 DLR(1999) 557,

“In this context it is to be borne in mind that generally local investigation by an Advocate Commissioner is allowed to  relay  any  land  or  property  in  order  to  determine  the location of the suit property but not in a case where the plaintiff described his land by giving full description with well defined boundary. In the case in hand defendants stated in their written statement that the property claimed by the plaintiff are quite different from the property claimed by them.  In  such  a  case  local  investigation  is  absolutely unnecessary.

Another aspect of the matter must not be overlooked. On a careful perusal of the written statement it reveals that the  identity  of  the  suit  property  had  not  been  at  all challenged by the defendants. It is well recognised that if identity of the suit property is not challenged by the other side, the question of holding local investigation relaying the property does not arise at all”.

It is held in Noor Islam Bayati and others vs. Aayanal @ Anwer Sheikh and others, 2017(2) LNJ (AD) 104,

“Therefore, we do not see any scope and necessity to appoint  any  Advocate  Commissioner  to  ascertain  the possession of either of the party. Further, possession is a question of fact and that has to be proved by producing evidence  and  that  cannot  be  decided  by  holding  local investigation.”

The learned Advocate appearing for the opposite party referred to the above mentioned decided cases and submitted that the above decisions squarely apply to the facts and circumstances of the case in hand.

The learned Advocate appearing for the petitioner, on the other hand, submits that the main purpose for holding local investigation in the instant case is to relay the suit land as per touzi No. 13103 and the farog (g¡lN) in question which is necessary to elucidate the matter in dispute.

It is already noted that the touzi No. 13103 was not mentioned in the schedule of the plaint. Moreover, the trial Court categorically observed that the plaintiff did not submit any document before it to relay the suit land based on the touzi in question. The suit land has been described in the schedule of the plaint by giving full description along with specific boundary. I note that the identity of the suit land has not been challenged in the written statement. Another purpose for holding  local  investigation  as  prayed  for  by  the  plaintiffs  is  to ascertain whether the pucca houses and shops erected by them situate on the suit land and whether the plaintiffs reside there. The issue is essentially a question of fact and can be decided on taking evidence. It is settled principle of law that the Court cannot delegate its judicial function of giving a decision on a point to a Commissioner under Order 26 rule 9. Hence, I have no hesitation to hold that the plaintiffs failed to make out a case for holding local investigation under Order 26 rule 9 of the CPC. Accordingly, I find no reason to interfere with the impugned judgment and order.

In the result, the Rule is discharged.

Mazhar, BO