Tapan Kumar Dutt, J.@mdashI have heard the learned Advocates appearing on behalf of the respective parties.
2. The facts, very briefly, are as follows :
The petitioner filed an application for pre-emption under Sections 8 and 9 of the West Bengal Land Reforms Act, 1955 being Miscellaneous Case No. 25 of 1998 against the opposite parties praying, inter alia, for an order of pre-emption in respect of the disputed property sold by the opposite party No. 2 to the opposite party No. 1 by a Deed of Conveyance dated 21.09.1998. The disputed property is a land measuring two sataks along with other alleged rights and privileges. The petitioners have alleged that the opposite party No. 2 out of his holding sold two sataks of land to the opposite party No. 1 by a registered Deed of Conveyance dated 21.09.1998 and that the petitioners are the owners of the land contiguous South to the disputed property and are entitled to pre-emption of the ground of his vicinage. That the Opposite Party Nos. 1 and 2 filed written statement in the said proceeding alleging, inter alia, that though there was a Deed of Partition it cannot be said that there was partition by metes and bounds i.e. by measurement among the co-sharers and it cannot be said that the petitioners are the contiguous owners. That the opposite parties further alleged that the description of the property given in the schedule to the application for pre-emption is vague and indefinite.
3. That in the said proceeding the petitioners filed an application under Order 26 Rule 9 read with Section 151 of the CPC praying for appointment of survey passed Advocate local investigation Commissioner in respect of the points mentioned in the schedule to the said application. The petitioners stated in the said application that the opposite parties in their written objection against the application for pre-emption have disputed the schedule of the application for pre-emption and to elucidate the matter in dispute and also to ascertain the boundary of the petitioners and to bring a true picture before the learned Court a local investigation commission is required to be held. That the opposite party filed an objection to the said application for local investigation. That by order dated 3.4.2001 the learned Trial Court allowed the application under Order 26 Rule 9 CPC by holding inter alia, that from the written objection filed by the opposite parties it appears that they have denied the petitioners'' claim for pre-emption on the ground of vicinage, that from the xerox copy of the Deed of Partition it appears that there has been a partition of plot No. 511 and at this stage it cannot be determined whether the Deed is a partition or not and to bring a true picture and also for proper adjudication of the dispute involved in the case the petition for local investigation should be allowed.
4. That challenging the said order dated 3.4.2001 the opposite parties filed Civil Revision Case No. 75 of 2001 in the Court of learned District Judge, Birbhum, Suri. That the said civil revision case was contested by the petitioners. That by order dated 11.4.2002 the learned Judge allowed the said civil revision case and set aside the order dated 3.4.2001. The learned Judge found, inter alia, that the onus rests upon the petitioners to show that they are land owners contiguous to the disputed property and in a pre-emption application local investigation is redundant. The learned Judge further held that the learned Trial Court without considering the gravity of the case and exceeding his jurisdiction allowed the petitioners'' prayer for local investigation which is not sustainable in law and as such the learned Trial Court''s order is liable to be set aside.
5. After hearing the learned Advocates for the respective parties it appears that there is a dispute as regards the description of the property in dispute as described by the petitioners in their application for pre-emption. In the written objection to the application for pre-emption the opposite parties have also alleged that the description of the property as given in the schedule of the application for pre-emption is vague and indefinite.
6. Mr. Das, learned Advocate appearing on behalf of the petitioner submitted that the Opposite Party No. 2 sold 2 decimals of land to the Opposite Party No. 1 by a certain Deed of Conveyance but in the said deed the northern boundary has been shown to be a ''kuchha'' road of the concerned Panchayat. According to Mr. Das, learned Advocate, 2 decimals of land situated on the northern side of the present property in dispute had already been sold by the Opposite Party No. 2 to some other persons and in such deed the northern side boundary has also been shown to be the ''kuchha'' road of the concerned Panchayat. According to Mr. Das the sale deeds executed by the opposite party No. 2 have created much confusion and it is necessary that the identity of the property should be properly established. According to Mr. Das the opposite parties have themselves disputed the description of the property given in the schedule of the application for pre-emption and have alleged that such description is vague and indefinite. According to Mr. Das it is necessary that a proper local investigation should be made and the identity of the property in dispute should be established and such local investigation is necessary for proper, effective and complete adjudication of the dispute between the parties.
7. Mr. Das further submitted that no Court can grant a relief in respect of a vague and unidentifiable property and that it is always fit and proper to have the identity of the property properly established for effective adjudication of a case. Mr. Das in this connection cited a decision reported at 1997 (2) CLJ 391 ,
8. Mr. Partha Dutta, learned Advocate, appearing on behalf of the opposite parties submitted that by making the application for local investigation the petitioner has attempted to fish out evidence. Mr. Dutta, learned Advocate, cited a decision reported at AIR 1978 Cat. 296, Institution of Engineers (India) and Anr. v. Bishnu, Pada Bag and Anr., and also a decision reported at 1996 WBLR (Cal.) 23, Satish Agarwal and Ors. v. Tirath Singh, in support of his submission that a party should not be allowed to fish out evidence.
9. After having heard the parties it appears to me that in the instant case the petitioner is not really fishing out any evidence. In my view it is necessary that the identity of the property in dispute should be clearly established and there should be no ambiguity in respect of the property in dispute. Since the opposite parties themselves have raised a dispute with regard to the description of the property it is only fit and proper that a local investigation should be held as prayed for by the petitioner. The learned Trial Court has rightly held that in order to bring a true picture and also for proper adjudication of the dispute involved in the case the local investigation is necessary. In the facts and circumstances of the instant case, allowing the application for local investigation does not mean that any party is being allowed to fill up any lacuna. In my view, the learned District Judge, Birbhum, Suri fell into error in holding that in a pre-emption application local investigation is redundant. In my view, the learned Civil Judge (Junior Division), Sadar, Suri did not commit any jurisdictional error in allowing the petitioner''s application for local investigation and it cannot be said that the order passed by the learned Civil Judge (Junior Division), Sadar, Suri is not sustainable in law. It appears that the learned District Judge, Birbhum, Suri did not really go into the question as to why the application for local investigation was made by the petitioner but erroneously proceeded on the basis that in a pre-emption application local investigation is redundant.
10. In view of what I have discussed above I am inclined to set aside the impugned order as it suffers from illegality and material irregularity. The impugned order is thus set aside and the application under Article 227 of the Constitution of India is allowed. There will, however, be no order as to costs.
11. Urgent xerox certified copy of this order, if applied for by the parties, be made available to the parties as expeditiously as possible.
