Authority: Calcutta High Court, Circuit Bench at Jalpaiguri
Order Date: 18 June 2026
Case Overview
- Plaintiff: Ataur Rahman (appealing petitioner) represented by Ms. Taniya Bhowmik.
- Defendant: M/s Sunrise Tea Estate Pvt. Ltd. and others, represented by Mr. Kunaljit Bhattacharya, Mr. Haider Ali, Mr. Satyam Sarkar, Mr. Rajarshree Mukherjee.
- The suit (Title Suit No. 31 of 2012) concerns alleged encroachment by the defendant on portions of the plaintiff’s suit property.
- Plaintiff filed an application under Order XXVI Rule 9 CPC seeking a local investigation (Survey‑passed Commissioner’s report) to identify Schedule A, B, C properties and ascertain any overlap.
- Trial Court dismissed the application, deeming the suit merely for declaration of title, recovery of possession and eviction, and labeling the request as “fishing out evidence”.
- Appellate counsel argued that visual inspection is insufficient and that a commissioner’s survey is essential to resolve the factual dispute over encroachment and property boundaries.
Final Outcome
- The appellate court held that the trial court erred; the concept of “fishing out evidence” does not apply.
- CO 22 of 2026 is allowed, setting aside Order No. 70 dated 8 December 2025 of the Civil Judge (Senior Division), Jalpaiguri Sadar Court.
- The trial judge is directed to appoint a Survey‑passed Commissioner within one week of communication of this order.
- The commissioner’s work should be completed preferably within one month from appointment to expedite the suit.
- No order as to costs.
- Certified copies of the order may be supplied to parties upon compliance with formalities.
Topics: Land Encroachment, Civil Procedure Order XXVI