Guju Mahato and another vs Jogendra Nath and another

Wort, J.—This appeal arises out of a decision of the Subordinate Judge of Purulia reversing the trial Court''s judgment in an action in which the plaintiffs claimed possession of a piece of land which according to their case was part of the land belonging to them and upon which the defendants had encroached. The trial Judge had not accepted the Commissioner''s report dodging in criticism which the Subordinate Judge thought there was no foundation for; and, if this Court were to come to any conclusion regarding it, I should be prepared to agree with the Subordinate Judge. But the question of fact is not open to this Court.

The only contention that. Mr. Chatterji has put forward on behalf of the defendants-appellants with some elaboration, and he has said everything that was possible to say in favour of his clients, is that the appellate Court has in some way made out a new case for the plaintiffs. This is not so. The course which the learned Judge in the appellate Court took was to come to the conclusion that the Munsif''s reasoning with respect to the Commissioner''s report as regards the survey map was wrong. He also criticized, and rightly criticized, the trial Judge for having gone to the spot not for the purpose of understanding the evidence but a Judge should make a local inspection for the purpose of substituting for the evidence in the case his own view of the matter. At least this must be said that he did not substitute his own view for the evidence, but he used his own inspection for the purpose not of understanding the evidence but of coming to the conclusion whether the plaintiffs evidence or the defendants evidence was true; and that, in my judgment, is another way of saying that he substituted his own view of the matter for the evidence in the case.

There is no substance in the appeal, there is no point of law it is a pure question of fact, and the question of limitation cannot be said to arise when once the learned Judge decided that the encroachment took place two or three years before the trial of the suit. In those circumstances the appeal fails and must be dismissed with costs.