Safiya Malik

The Calcutta High Court  has directed the reconsideration of an application seeking a scientific investigation in a property dispute involving an alleged encroachment upon a common passage. The court held that the trial court had failed to properly assess the necessity of appointing a scientific investigation commissioner, leading to the dismissal of the plaintiff’s request. Consequently, the order was set aside, and the matter was remitted for fresh consideration in accordance with the law.

The dispute revolves around an easementary right concerning a common passage. The petitioner, who is the plaintiff in the original suit, initiated a case for declaration and permanent injunction, claiming that the defendant unlawfully constructed a brick-built room, thereby encroaching on the common passage. In addition to this alleged encroachment, the plaintiff asserted that an underground electric line of CESC Limited runs beneath the newly constructed structure, which further substantiates the claim of illegal occupation.

According to the plaintiff, the encroachment not only restricts access to the common passage but also interferes with the essential electricity supply passing underneath. To establish this claim, the plaintiff sought the appointment of a scientific investigation commissioner with authority to conduct an on-site examination. This request was submitted under Order 26 Rule 10A of the Code of Civil Procedure, which allows for such investigations when necessary to elucidate disputed matters.

The defendant contested the application, arguing that there was no conclusive proof of encroachment. The defendant also maintained that the constructed room was built on his own land, not on the common passage. Additionally, the defendant pointed out that CESC Limited had not been made a party to the proceedings, further challenging the legitimacy of the plaintiff’s claim.

The trial court, in an order dated January 6, 2023, rejected the plaintiff’s application, stating that the fact of encroachment had not been sufficiently established. The trial judge observed that granting permission for scientific investigation would amount to ‘fishing for evidence,’ which is not permissible under procedural law. The court held that the plaintiff could establish encroachment at the trial stage through the submission of proper evidence instead of seeking scientific verification at the preliminary stage.

The revisional court examined the legal provisions governing the appointment of local and scientific investigation commissioners. The court referred to Rule 9 and Rule 10A of Order 26 of the Code of Civil Procedure. Under Rule 9, local investigations may be conducted when required to clarify a matter in dispute, while Rule 10A provides for scientific investigations when they cannot conveniently be carried out before the court.

The court referred to several judicial precedents that have established that scientific investigation is permissible in cases where technical verification is necessary. Notable judgements cited by the court included:

• Gurdial Singh & Anr v. Avtar Singh & Ors, where it was observed that expert reports could significantly assist in resolving factual disputes related to physical verification of property.

• Balia Ram v. Mola Ram & Another, which held that local investigations are warranted when on-site evidence is essential for fair adjudication.

• Chatter Singh v. Dina Nath, in which the court determined that appointing a local commissioner is necessary when there is a dispute over land demarcation.

Applying these legal principles, the revisional court concluded that the trial judge had erred in summarily rejecting the application. The revisional court specifically noted:

“The Learned Trial Court did not address whether the appointment of commission is necessary for the purpose of elucidating the matter in dispute, or whether evidence of existence of electric line underneath is necessary or not, or if necessary, it can be obtained without local investigation or not.”

Additionally, the court observed that the trial judge mistakenly asserted that CESC Limited was not a party to the proceedings, whereas in fact, the District Engineer of CESC Limited had been impleaded as a party. This factual oversight further undermined the validity of the trial court’s reasoning.

The revisional court also reviewed the necessity of allowing scientific investigation in property disputes, particularly where underground structures or hidden encroachments are alleged. The court noted that such cases often require expert assessments that cannot be conducted solely based on oral testimony or documentary evidence.

Furthermore, the court considered the argument that the application for scientific investigation was an attempt to gather evidence rather than clarify an existing dispute. The court determined that the plaintiff’s request was not an effort to introduce new evidence but rather an essential step in verifying the presence of the underground electric line, which is central to the claim of encroachment.

In light of these findings, the court set aside the order dated January 6, 2023, and directed the trial court to reconsider the plaintiff’s application for the appointment of a scientific investigation commissioner. The revisional court instructed the trial court to evaluate the application based on legal principles and judicial precedents without summarily rejecting it.

The court’s directive stated:

“Order dated 06-01-2023 passed by Learned Civil Judge Junior Division Fifth Court Howrah in Title Suit no-149 of 2017 is set aside. The application under Order XXVI Rule 10A of the Code of Civil Procedure is remitted to the Learned Trial Court to reconsider the same in accordance with law after hearing the opposite parties/defendants including District Engineer CESC Limited.”

The court stated that all issues remained open for consideration and that no findings had been made on the merits of the case. The trial court was instructed to ensure a fair reassessment of the application by considering the need for scientific verification in resolving the dispute.

Case Title: Chittaranjan Sardar v. Biswanath Sardar & Ors.

Case Number: C.O. 3015 of 2023

Bench: Justice Biswaroop Chowdhury

[Read/Download order]