Disposed¶23

Malati Barik v. Sideshwar Barik and Ors.

Calcutta HC12 May 2026CO/4508/2023

Case brief

AI extract

What is this about?

Malati Barik v. Sideshwar Barik & Ors.; CO 4508 of 2023; civil revision on Order 26 Rule 9 CPC local investigation / appointment of survey commissioner in a land dispute over (KA) and (KHA) schedule lands, MouzaKandua-Paschimbar, J.L. No. 134, P.S. Ramnagar (settlement map 1933-36); impugned trial-court order dated 17th November, 2023 set aside; defendants' written statement admitted necessity of survey commission; boundary dispute; decided 12.05.2026 by Dinesh Kumar Sharma, J.

What did the court decide?

Impugned order of 17th November, 2023 set aside; learned trial court directed to appoint a local survey commissioner after hearing both parties in accordance with law. ¶23

Malati Barik Vs Sideshwar Barik and Ors. — Calcutta HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

Impugned order of 17th November, 2023 set aside; learned trial court directed to appoint a local survey commissioner after hearing both parties in accordance with law.

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Issue for consideration

Whether the learned trial court erred in dismissing the plaintiff's application under Order 26 Rule 9 CPC for survey/local investigation, given the defendants' written-statement admission that a survey commission was necessary for adjudication of the dispute over the (KA)/(KHA) schedule lands.

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Court's answer

There is an admission by the defendant/opposite party nos. 1 to 4 in their written statement that the survey commission is necessary for the adjudication of the matter in dispute; Order 26 Rule 9 of the CPC confers jurisdiction on the court for local investigation to elucidate any matter in dispute.

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Ratio / Principle

The learned trial court committed an error by not looking into the plea of the defendant/opposite party nos. 1 to 4 and by inter alia holding that there is no boundary dispute between the parties.

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Key takeaways

Survey investigation is necessary for the proper adjudication of the matter in dispute in respect of the pleadings of both parties; accordingly the impugned order is set aside and the learned trial court is directed to appoint a local survey commissioner after hearing both parties in accordance with law.ratio¶23

Detailed headnote1 paragraphs

Civil revision CO 4508 of 2023 (Malati Barik v. Sideshwar Barik & Ors.), decided 12.05.2026 by Dinesh Kumar Sharma, J.: The revisional court set aside the learned trial court's order of 17th November, 2023 dismissing the plaintiff's application under Order 26 Rule 9 CPC for survey investigation. Relying on the defendants' own written-statement admission that a survey commission was necessary for adjudication, and holding that the trial court erred in ignoring that plea and in concluding there was no boundary dispute, the court found survey investigation necessary for proper adjudication of the rival pleadings over the (KA)/(KHA) schedule lands and directed the trial court to appoint a local survey commissioner after hearing both parties in accordance with law.

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12.05.2026 Ct No.2 D/L 10 Mujahid

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CO 4508 of 2023

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Malati Barik Vs.

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Sideshwar Barik & Ors.

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Mr. Sandip Das Mr. Diptyendu Kr. Pal

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…for the petitioner

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Mr. Rwitendra Banerjee

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…for the opposite party nos.2 to 4

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1. Present revision petition has been filed challenging the order dated 17^th November, 2023 whereby the learned trial court has dismissed the application under Order 26 Rule 9 CPC filed by the plaintiff for survey investigation.

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2. Learned counsel for the petitioner submits that the plaintiff had sought the survey investigation on the following points:-

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“1. To survey and relay the (ka) & (kha) Schedule lands as pegged out by the plaintiff with the help of settlement map of MouzaKandua-Paschimbar, J.L. No. 134, under P.S. Ramnagar, for the year 1933-36 and find out whether the (KA) schedule land is part and parcel of (KHA) or not.

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To calculate the area and boundaries of the (KA) and (KHA) schedule lands which as pegged out by the plaintiff in the filed.

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To Survey all other important local features which will be seen or shown at the time of investigation.

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That Ld. Commissioner is to draw a Case Map according to suitable enlarged scale showing there in the existence of (ka) and (kha) schedule lands in separate colours and submit it before the Ld. Court along with field book and report.”

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3. Learned counsel for the petitioner submits that the defendant in their written statement had themselves admitted that there is a need for local survey investigation. However, the learned trial court fell into error by inter alia holding that there is boundary dispute as such between the parties in respect of their respective plot numbers.

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4. Learned counsel for the opposite parties submits that in the revisional jurisdiction, the court may not interfere with the order of the learned trail court as there is no illegality or perversity.

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5. This court has considered the submissions in the translated copy of the written statement, the defendant/opposite party nos. 1 to 4 have themselves stated as under:-

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“18. (sic) That, the defendants further submit that the (KA) Schedule property under dispute in not included in (KHA) Schedule property. The 104, 65 and 66 Dag property described in disputed (KA) Schedule does not or cannot belong Dag 103. The disputed (KA) Schedule property does not or cannot be claimed as a part of (KHA) Schedule property, it is necessary to make survey commission. In absence of survey investigation the Plaintiff cannot claim schedule (KA) property. The burden of proving that disputed (KA) Schedule property is a part of (KHA) Schedule property vested upon the plaintiff.”

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6. Thus, there is an admission on the party of the defendant/opposite party nos. 1 to 4 that the survey commission is necessary for the adjudication of the matter in dispute. Order 26 Rule 9 of the CPC confers jurisdiction upon the court for local investigation for the purpose of elucidating any matter in dispute.

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7. This court considers that the learned trial court has committed an error by not looking into the plea of the defendant/opposite party nos. 1 to 4 and inter alia holding that there is no boundary dispute.

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8. This court considers that survey investigation is necessary for the proper adjudication of the matter in dispute in respect of the pleadings of both the parties. Hence the impugned order is set aside. Learned trial court is directed to appoint a local survey commissioner after hearing of both the parties in accordance with the law.

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9. CO 4508 of 2023 stands disposed of.

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10. All parties shall act in terms of server copy of the order downloaded from the official website of this Court.

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(Dinesh Kumar Sharma, J.)

Malati Barik v. Sideshwar Barik and Ors.

Case brief

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Malati Barik v. Sideshwar Barik and Ors.

Case brief

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What the court decided

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