Sambhu Nath Mondal & Ors vs Modan Hazra & Ors

Shampa Sarkar, J

Affidavit of service is taken on record. None appears on behalf of the plaintiff/opposite party No.1 despite notice.

This revisional application has been filed by the defendant Nos. 1 to 11 in Title Suit No.377 of 2015 before the learned Civil Judge, Senior Division, 7th

Court at Alipore, South 24 Parganas.

The petitioners are aggrieved by an order dated October 1, 2019 refusing police help for construction of a boundary wall on their application under

Section 151 of the Code of Civil Procedure.

The learned Court below refused to pass an order for police help on the ground that there was no report of local inspection and it was not possible for

the learned Court below to compare the nature and character of the suit property as it stood on the date of the passing of the order of injunction. The

application was considered and rejected ex parte as the plaintiff did not appear. Admittedly, the plaintiff did not appear during the proceeding on

October 1, 2019. On the last occasion, when the matter was called on, an affidavit of service was produced. Despite service none appeared on behalf

of the plaintiff. Again, this Court directed the petitioner to serve the opposite party No.1. The other opposite parties being proforma defendants have

not yet contested the suit and service was dispensed with.

Today, an affidavit of service has been filed showing service upon the plaintiff, yet, plaintiff is not before this Court. The same is taken on record.

Under such circumstances, this revisional application is taken up for hearing ex parte.

Mr. Chatterjee, learned Advocate appearing on behalf of the petitioners, submits that his clients were in possession of the suit property being “Bâ€

schedule property as admitted in the plaint, pursuant to a decree passed in Title Suit No.159 of 2004. He further submits that by an order passed by

the learned Civil Judge (Senior Division), 7th Court at Alipore, liberty was granted to the parties to erect boundary walls for the protection and

preservation of “A†schedule property including the “B†schedule property. The learned Court below also recorded consent of the parties.

Thereafter by an order dated July 1, 2019, the application filed by the petitioners (defendant Nos.1 to 11) under Order XXXIX Rules 1 and 2 of the

Code of Civil Procedure was allowed by the learned Civil Judge (Senior Division-)in-Charge of the said Court restraining the plaintiff from causing

any disturbance in respect of the ʺBâ€​ schedule property.

Under such circumstances, once there is an order of competent Civil Court allowing the parties including the plaintiff to raise their boundary walls in

order to protect their individual properties and the plaintiff not having approached the higher forum being aggrieved by such an order, I do not find any

reason not to allow the petitioners to construct the boundary wall over the “B†schedule property in terms of the schedule recorded in their own

deeds with police help, if necessary.

The plaintiff will also be entitled to raise a boundary wall over the “A†schedule property as already directed by the learned Court below. The

plaintiff has not prayed for any injunction against the petitioners in the suit. There is no allegation of encroachment. The plaintiff also does not claim

title over the disputed “Bâ€​ schedule property. However, the defendants/petitioners will not claim any equity over such construction.

If ultimately it is found in the suit that the “B†schedule property or the property claimed by the petitioners fell within the area over which the

plaintiff has claimed possession then appropriate orders will be passed by the learned Court below for demolition.

Despite several opportunities given to the plaintiff, the plaintiff has not entered appearance before this Court. Nothing remains to be heard out in this

application.

The impugned order is set aside and quashed for the following reasons:-

(a) the learned Court below failed to consider the previous orders passed by the Court with regard to allowing the parties to construct respective

boundary walls over the respective shares in the property; (b) local inspection was not necessary in view of the earlier order passed allowing

construction of boundary wall; (c) it is not the plaintiff’s case that the defendants have encroached into the plaintiff portion for which any local

inspection or investigation was at all necessary, inasmuch as, the existing features of the suit property was not required to be considered in this case at

the stage of disposal of the application under Section 151 of the Code of Civil Procedure, for police help.

The petitioners will be entitled to approach the local police station for police help so that they can raise their boundary wall in terms of the order

passed on July 1, 2019.

This revisional application is, thus, disposed of.

There will be, however, no order as to costs.

Urgent photostat certified copy of this order, if applied for, be given to the parties on priority basis.