Balai Chandra Ghose vs Tarapada Ghose

Prasanta Bihari Mukharji, J.—Three points of law have been urged in this second appeal. The first point is that when there are two reports by two commissioners for local investigation, it is only the second commissioner''s report which should have been taken as conclusive and not the first commissioner''s report. The second point is that the lower appellate Court has made a confusion between Article 142 and Article 144 of the Limitation Act in the facts of this case and the Court below should have held that the Plaintiffs suit was barred by limitation. The third point is whether there is any presumption of accuracy or correctness in favour of C.S. maps.

It is said that the lower appellate Court was wrong in presuming these to be correct.

Before discussing these points a brief and short account of the facts giving rise to the appeal may be given. The Plaintiffs brought this suit for recovery of khash possession of and declaration of the Plaintiffs'' title to certain lands described in Ka and Kha schedules in the plaint and for permanent injunction. There is also a sketch map attached to the plaint. The Plaintiffs'' case is that Ka and Kha schedule lands appertain to C.S. plot No. 138 and that the first Defendant has wrongfully filled up the Ka and Kha schedule lands with earth and refuge in spite of repeated objections by the Plaintiffs'' father and that the first Defendant has also commenced construction of a mud wall in the portion marked by certain lines in the sketch map annexed to the plaint. The Plaintiffs prayed for recovery of khash possession of Ka and Kha schedule lands along with a prayer for injunction for removal of the wall.

The defence of the first Defendant in the written statement is that the suit lands did never appertain to C.S. plot No. 138 and that he as the first Defendant was all along in possession of the Ka and Kha schedule lands which appertained to his plots Nos. 137, 150 and 149. He also denied that he had filled up the suit lands with earth and refuge. The trial Court decreed the suit against the first Defendant and dismissed it with proportionate costs against the rest of the Defendants. The trial Court declared the Plaintiffs'' title to over 28 sq. ft. of Ka schedule and 362 sq. ft. Kha schedule lands as shown in the comparative sketch map and the report of the pleader commissioner, Manindra Nath Mondal and directed that the first Defendant do deliver vacant possession of the same and also granted consequential injunction. On appeal by the Defendants, the appeal was dismissed and the judgment and decree of the trial Court were confirmed. The Defendant filed this second appeal raising the points stated above.

Mr. Roy Choudhury, appearing for the Appellant, submits that, when there are two reports of the commissioners for local investigation, it is only the second report which should be accepted by the Court. The reason for this submission is that the very fact that a second commission was issued shows that the Court was dissatisfied with the first commissioner''s report. Therefore, there should be no reliance on the report of the first commissioner. In this connection he refers to the provisions contained in Order 26, Rule 10(3) of the CPC stating as follows:

Where the Court is for any reason dissatisfied with the proceedings of the commissioner, it may direct such further inquiry to be made as it shall think fit.

In support of his argument Mr. Roy Choudhury relied on the Madras decision in Kunhi Kutti Ali and Another Vs. Muhammad Haji (died) and Others, and especially on the observations of the Court at p. 249 which were to the following effect:

We come, then to the question of rental in which connection the learned Subordinate Judge has taken largely into consideration the reports of two commissioners, both of whom have reported on the probable yield of the suit lands. We have, in the first place, to remark that the lower Court should not have issued two separate commissions to deal with one and the same subject and to treat the reports of both the commissioners as evidence in the case. The exact circumstances in which he came to issue the second commission do not appear from the record that has been placed before us, but the second commission should not have been issued, unless it was thought that the report of the first commissioner was not satisfactory, in which case the earlier commission should have been wiped out altogether and attention should have been paid only to what was reported by the second commissioner. Instead of this the learned Subordinate Judge has balanced the report of one commissioner against that of the other and has, expressed a preference for the views of the first commissioner. In taking this course he has acted with great impropriety and contrary to what is contemplated by Order XXVI, Rule 10(3) of the Code of Civil Procedure.

I respectfully agree with the views expressed therein with some reservations which I shall presently state. Normally of course no Court should issue a second commission of which there has already been a first commission and a report thereon by the first commissioner. That is common sense. Secondly, the Court''s power under Order 26, Rule 10(3) expressly contemplates further inquiry only when the Court for any reason is dissatisfied with the proceedings of the first commission. But then where in fact the reports of two commissioners are on evidence, not only as records but as exhibits in the case, the question arises what is the Court going to do in such event, especially when the event takes place in circumstances, which have happened in this case.

What has happened in this case is that when the first commissioner''s report was duly accepted and received as correct, objections were raised to the first commissioner''s report, but those objections were over-ruled. An attempt was made again by the Defendant-Appellant to re-open the first commissioner''s report, but it did not succeed. Order No. 75 dated April 27, 1965, inter alia, records--

As the report of Sri Mondal (first commissioner) has already been accepted, the Defendant cannot be permitted to; challenge the same without first showing that the matter can be re-opened by this Court. The Defendant''s pleader, Sri H.G. Roy, wants some time to produce some ruling to show that for the ends of justice the Court may re-open his objections at this state u/s 151 of the Code of Civil Procedure, He is allowed time till June 28, 1956 for the purpose.

Nothing else happened with regard to this point, but apparently, the attempt to re-open the matter u/s 151 of the CPC did not succeed.

Then the Appellant made the next attempt to call for a second commission and this time got an order from the trial Court for the issue of such a commission, but the order did not state any reason whatever for the issue of such a second commission. It was then discovered by the Court itself that the second commission was irregular. By Order No. 77 dated July 14, 1956, the Court records:

It appears that the report of the first commissioner, Sri Manindra Nath Mondal, dated 24th July, 1954, was accepted by the Court over-ruling Defendant''s contention on 4th January, 1955, long before the application for the second commission was made on 22nd March, 1955. That being so no notice can be taken of the second commissioner''s report at this stage. In fact, the very issuing of the second commission was irregular and the present trouble would possibly have been nipped in the bud if the Plaintiff''s pleader had drawn Court''s attention to the Mulla''s Commentary to the Order 26, Rule 1 earlier, i.e., at the time of hearing of the Defendant''s petition for commission. Any way, in view of the above legal position, the report of the second commission cannot be taken into account. Besides, as both the parties challenged the correctness of the findings of the second commissioner''s report, it cannot in any view of the matter be accepted. That being so, it is not necessary to accept the evidence of the second commissioner, Sri B.K. Chaudhuri and his report is rejected. The order accepting the report of the first commission stands.

This order makes the position quite clear that the second commission itself was irregular and therefore, the report of the second commissioner could not be accepted and that the first commissioner''s report stands as that had already been accepted by the Court.

The Appellant made the last and the third attempt even thereafter to re-open this question and that was done when the suit was taken up for peremptory hearing. The Appellant filed a petition for reconsidering the. Order rejecting the second report of the pleader commissioner, Sri B.K. Chaudhury. The Plaintiff opposed. The Appellant then filed a petition for taking into evidence the report of the pleader commissioner, Sri Chaudhury and making the same exhibit on the Appellant''s side. To that also there was objection by the Plaintiff. Ultimately what the Court did was to make the following order by Order No. 88 dated February 18, 1957:

this Court''s order No. 77 dated 14th July, 1956 is reconsidered. Prayers of the Defendant No. 1 are allowed. The petitions of the Plaintiff are rejected. The report of the Commissioner, Sri M.N. Mondal, is marked Exhibit 1 for the Plaintiff. The report of the Commissioner, Sri B.K. Chaudhuri, is also accepted and is marked Exhibit A after objection.

The Court also allowed the Appellant''s prayer to examine the second commissioner, Sri B.K. Chaudhuri, as a witness.

Now on these facts Mr. Roy Choudhury for the Appellant contends that the Court''s acceptance of and reliance on the first commissioner''s report in preference to the second commissioner''s report was wrong. On the facts this argument seems to me unsound because of the circumstances stated above. There is no appeal, no revision or no step taken at any stage by the Appellant to challenge the order of the Court accepting the first commissioner''s report. Therefore, the report of the first commissioner which is marked Exhibit 1 is a piece of evidence on the record. It cannot be just completely wiped out. Secondly, this is not a case where the Court was dissatisfied with the first commissioner''s report and on such dissatisfaction it issued a second commission. On the contrary, the Court itself, as will appear from the orders quoted above, found that it was wrong in issuing the second commission and in fact at one stage rejected outright the report of the second commissioner. This fact itself completely distinguishes the case from the facts of the Madras decision on which reliance was placed for the Appellant. Rightly or wrongly, however improper the issue of the second com: mission might have been, the Court followed the only, possible course in the circumstances of this case, namely, to treat both the reports as pieces of evidence and then come to its own independent opinion upon them. In such circumstances I am satisfied that the Court can always do that because the reports of the commissioners are really more or less in the nature of evidence on relevant points in the suit and it is always open to the Court to sift and analyse that evidence. Good and cogent reasons have been given in the present case why the second commissioner''s report on the merits was not acceptable to the Court at the trial. It has been found that the second commissioner, Mr. Chaudhury, proceeded on certain fixed points which are really not permanent landmark as could at all be accepted as the basis of re-payment. No attempt was made by Mr. Chaudhury to take any tri-j unction point available in the locality as the fixed mark for the purpose of re-laying. He merely relayed the C.S. map with reference to permanent landmark in the vicinity of the land in suit. Even in doing so he took permanent landmarks which are normally unacceptable and are generally not in actual position since the time of the settlement operation. It is the finding both of the lower-appellate Court as well as of the trial Court. These are the reasons why they rejected the second commissioner''s report and in my view rightly. The first commissioner, on the other hand, Mr. Mandal, took the permanent landmark, the tri-junction stone found near the locality as also certain C.S. plots lying to the north of the disputed plot No. 138. He also found satisfactory coincidence in respect of the disjunction stones north of the C.S. plot No. 186. Mr. Mandal again found fair and substantial agreement in respect of ''the other permanent landmarks taken by'' him as the basis of his re-laying in the first report.

The Court in such circumstances is not powerless and I am unable to accept the contention for the Appellant that it is only the second commissioner''s report which the Court was bound to accept even though the Court holds this second report to be wrong and inaccurate. It is essential to emphasise that the sole purpose and procedure of commissions for local investigation as laid down in the CPC is "for the purpose of elucidating any matter in dispute" under Order 26, Rule 9 of the Code of Civil Procedure. A closer scrutiny of the provision of Rule 10 of Order 26 as a whole makes it abundantly clear that the commissioner after local inspection and after reducing to writing the evidence taken by him, has to return such evidence together with his report in writing signed by him to the Court. That report of the commissioner and the evidence taken by him, but not the evidence without the report, shall be evidence in the suit and shall form part of the record. The Court may examine the commissioner personally in open Court touching any of the matters referred to him or mentioned in his report or as to his report, or as to the manner in which he has made the investigation. Therefore, the report of the commissioner for local investigation is nothing more than a piece of evidence for the purpose of elucidating any matter in dispute. It has no other sanctity but as a piece of evidence. It cannot in that sense be said to bind a Court of law if the Court of law finds that the report, even though formally accepted, for reasons adduced at the trial through witnesses and other circumstances is not acceptable. No doubt as a matter of ordinary practice and procedure before the commissioner''s report is accepted notice is given to the other side and there the Court hears such a petition and finally makes an order either accepting or rejecting the report of the Commissioner. Such an order of acceptance or rejection should not, of course, as a matter of fact--as a normal procedure, be lightly set aside. But that does not mean that it is sacrosanct and in new circumstances during the trial and especially at the trial even an accepted report can be questioned and if so found wanting the Court is free to reject such accepted report. I refuse to assent to the view that the commissioner''s report in such circumstances in a suit is anything more than a piece of evidence and I also refuse to assent to the proposition that such report binds the Court in the manner indicated above. Subject to this qualification, I subscribe to the principle and I am of the same opinion that the practice of issuing several commissions and arriving at different decisions by process of summons from the reports, is neither proper nor appropriate. In this connection reference may also be made to a decision of the Patna High Court in Shib Charan Sahu and Others Vs. Sarda Prasad and Another, , where Courtney Terrell C.J., delivering the judgment of the Division Bench, observed as follows at pp. 670-71:

Before us, the Defendants now raise a new and even more extraordinary contention and we have heard nothing of the contention raised before the learned Judge sitting singly. Relying upon the decisions of the Madras High Court Kunhi Kutti Ali v. Muhammad Haji Supra and Pazhancheri Panangat v. Achuta Menon 55 Mad. 656 : AIR 1932 Mad. 482, it is argued that when a Judge issues a commission, if the is dissatisfied with the report of the commissioner and sees fit to direct a second commission to issue, he should wipe the first commissioner''s report off the record entirely, treat it as not being'' evidence and decide the point on such evidence as may remain in the shape of the second commissioner''s report and such further evidence as may be available. Now the observations of the Madras High Court to which reference was made in the cases which I have referred to, were directed not to establishing this supposed principle at all. In those judgments,, the Madras High Court was endeavouring to correct a very bad tendency on the part of the Munsifs of the Malabar districts who appeared to have got into the habit of sending out simultaneous commissions to investigate the same issue of fact and then taking all the commissioners'' report into consideration and deciding as between these various reports which of them was preferable; and this habit of sending out commissions whether simultaneous or consecutive had become a nuisance which the Madras High Court very properly desired to check and put an end to. I can find in those judgments no statement of a principle such as is contended for in this appeal. There is nothing in Order 26, Rule 10 CPC to justify such a contention. It is in the power of the trial Court to send out a second or even a third commission and when all the materials are before the Court it may at the time of delivering judgment attach very little or, no weight to the first commissioner''s report but this is very far from saying that this amounts to requiring the first report to be wiped out of the record and not considered as evidence. That the argument is entirely unsound is seen on considering what, if it were true, would be the position in the case of an Appellate Court. The first Court''s decision on the matter of fact is not final and if the contention were to be accepted, it would prevent an Appellate Court from taking into consideration the first commissioner''s report; this consideration alone is sufficient to demonstrate the fallacy of the argument. It has been necessary to deal with this new point because of the misplaced interpretation of the Madras cases which in my opinion lay down no such proposition as has been contended for and it is necessary to prevent this argument being raised in future to the embarrassment of lower Courts.

I respectfully associate myself with the observations of Courtney Terrell, C.J. on the interpretation of the Madras decisions.

I, therefore, over-rule the first submission, for the Appellant and hold that the lower Appellate Court in the facts, circumstances and the law in this case was quite justified in rejecting the second commissioner''s report and relying on the first commissioner''s report. I need only add this that the second commissioner, Mr. Choudhury, actually appeared as a witness to prove his second report marked Ext. A and was duly cross-examined so that both his deposition as well as his report were rightly treated as an evidence and rejected on merits. There could, therefore, be also no prejudice in this respect to the Appellant in any view of the matter.

The next submission that was put forward on behalf of the Appellant relates to the point of limitation. The inspiration for this argument was rightly drawn from one confusion which the lower Appellate Court made on this point by making the remark that

a combination of Articles 142 and 144 should, therefore, be held applicable to the facts of the present case. That in my view is never possible. Article 144 expressly uses the language not hereby otherwise specially provided for;

That being so, Article 144 could only apply if Article 142 did not apply. They cannot both apply to the same facts of the case. The starting point of limitation in the two Articles indicates the emphasis. In Article 142 of the Limitation Act, 12 years'' period runs from the date of the Plaintiff''s dispossession or discontinuance. But the period of 12 years under Article 144 of the Limitation Act runs from the period when the possession of the Defendant becomes adverse to the Plaintiff. No doubt both the Articles relate to suits for possession of immovable property.

It is essential to remember the pleadings in this case. Paragraph 5 of the plaint expressly avers the Plaintiff''s dispossession in the month of Magh 1359 B.S. The defence on the other hand in the written statement has been that the Defendant was in possession of these plots. No defence on the ground of dispossession was taken except in respect of Kha schedule lands with regard to which the Defendant pleaded in para. 7 of the written statement that the possession had become adverse. But then the fact is that this position was abandoned at the trial. No evidence was adduced on behalf of the Defendant on the question of adverse possession. The Defendant''s main case really was reliance on the strength of their own title and that defence failed. The evidence on behalf of the Plaintiffs, on the other, hand, was that the dispossession took place in Magh or rather Falgoon 1359 B.S. That evidence appears to have been accepted by the trial Court. The trial Court expressly said that considering the facts and the totality of the evidence on the record the suit was not barred by Article 142 of the Indian Limitation Act.

The, nature of dispossession naturally varies according to the facts and "circumstances in each case. In this case the facts cannot be overlooked and must be clearly borne in mind. It has been found as a fact by the lower Appellate Court that the lands in suit were in effect patit or waste lands "although Mr. Roy Chaudhury for the Appellant disputed that proposition by suggesting that this finding of fact is not supported by any evidence. Yet that position cannot be maintained because it is not a ground of appeal in this second appeal that this finding that the lands were patit lands was not supported by any evidence. Therefore, it follows that the Plaintiffs in such circumstances cannot prove the actual use and possession. In that sense it is not necessarily actual user, for the reason that the land may be of such a nature, as it is in this case, as to render it unfit for actual enjoyment in the ordinary and usual modes. In such circumstances possession once established will naturally continue unless it is proved otherwise by contrary evidence. Such evidence is not there to support the case of the Appellant. No doubt, even in such a case the Plaintiff must show the acts of ownership as are natural under the existing condition of the property. In cases of waste lands or tank lands of jungle lands evidence of physical acts of enjoyment and user indicating possession may not be there, but it is all a question of degrees and a question of fact in each case. For these reasons I hold that Article 142 of the Limitation Act applies to the facts of this case and that the suit is not barred by limitation under that Article in the facts and circumstances stated above and as found by the lower Appellate Court. I, therefore, over-rule the second point urged on behalf of the Appellant.

The third and the last point for the Appellant is that there is no presumption of accuracy or correctness in favour of the C.S. map and the revenue survey of thana Kalna, dist. Burdwan marked as Ext. 2 for the Plaintiffs in this case. The argument on this point for the Appellant is built on the strength of Section 103B of the Bengal Tenancy Act. It is argued that this presumption is only about the correctness of the entries in the record of rights and not in maps. No doubt, Section 103B of the Bengal Tenancy Act says so. But the argument is unsound. I shall state the reasons briefly.

In the first place this map was duly proved and marked as Ext. There was no objection at the stage when it was received in evidence and marked as Ext. Secondly, there was no cross-examination or any other evidence to show that this map is in any way inaccurate. Therefore, on the facts it must be held that this map has been duly and correctly proved and there is nothing in the evidence to show that it is inaccurate. It follows and it must be accepted as correct and the Court was quite justified in accepting its correctness on the facts.

So far as the legal aspect of this problem is concerned the point is quite clear. The presumption in respect of this map is contained not in Section 103B of the Bengal Tenancy Act, but in Section 83 of the Evidence Act. That section of the Evidence Act provides as follows:

The Court shall presume that maps or plans purporting to be made by the authority of the Central Government or any State Government were so made and are accurate; but maps and plans made for the purposes of any cause must be proved to be accurate.

This Ext. 2 is a printed map and expressly bears the endorsement "made by the authority of the Government in 1928-31 and Settlement Officer and Superintendent of Survey". The express language of Section 83 makes it clear that the Court shall presume that such maps purporting to be made by the authority of the Government were so made and are accurate. The principle on which this presumption in favour of such maps is made was clearly and expressly laid down by Lord Lindley in Maharaja Jagadindra, Nath Roy Bahadoor v. The Secretary of State for India in Council L.R. 30 IndAp 44, 53, in the following terms:

Maps and surveys made in India for revenue purposes are official documents prepared by competent persons and with such publicity and notice to persons interested as to be admissible and valuable evidence of the state of things at the time they are made. They are not conclusive and may be shewn to be wrong but in the absence of evidence to the contrary they may be properly judicially received in evidence as correct when made. This is in accordance with the cases reported in ILR Cal 252, ILR Cal 186, ILR Cal 784, 18 Suth W.R. 64 and 19 Suth W.R. 127.

The last point, therefore, must also fail.

For the reasons stated above, this appeal is dismissed with costs.