Mt. Bibi Fatma Sogra vs S. Saider Hussain and Others

Manohar Lall, J.—This is an appeal by the plaintiff arising out of a suit instituted by her for removal of two encroachments as alleged in the plaint. The dispute between the parties had been carried before the Criminal Court before the matter was taken to the Civil Court. In the Criminal Court, a Commissioner was appointed to find out the encroachments. The matter then came to the Munsif who tried the suit instituted in 1936 as Title Suit No. 63. Although a suggestion was thrown out by the Court in the course of the hearing that a commission ought to be taken out in the case, the plaintiff preferred to rely upon the evidence which she adduced and refused to take advantage of the suggestion. The learned Munsif speaks of this matter in this manner:

In a case of encroachment ordinarily, it is necessary that a commission should be taken out to ascertain by actual measurement on the spot it there has been really an encroachment. No suck commission was however taken out in this case though I had even suggested to plaintiff''s advocate about this course at the time of hearing.

In other words the plaintiff insisted that the Court must decide upon the evidence which she was adducing in the case; she apparently relied strongly upon the report of the Commissioner who was examined before the learned Munsif to prove the report and the map which he had submitted to the Sub-divisional Officer, which are marked Exs. 5 and 5 (a) in the case. The learned Munsif was not at all impressed by the report which he describes as perfunctory and unreliable. He explains his remarks by saying that the Commissioner is admittedly a class friend of plaintiff''s son M. Nehal Hasan, and as such, be cannot be said to be an altogether unbiased witness.

He states further that:

He admittedly went to inspect the spot when the wall in question here was not in existence at all, it (according to plaintiff''s case) having been constructed in May 1935, while the Amin went to inspect in February 1935. Therefore he is incompetent to depose or report about any encroachment caused by the construction of a wall which was not in existence at all at the time he visited the spot.

The learned Munsif adds:

It is significant that not a single independent witness of the village has been examined nor, as I have said, any commission taken out and one cannot help thinking that these omissions have been made because the plaintiff and for the matter of that her son Moulvi Nehal Hasan were not sure of their case.

In the end the learned Munsif held that the plaintiff failed to substantiate the alleged encroachment to the western wall of their plot No. 29. He then dealing with another encroachment in Issue 9 came to the conclusion that "this encroachment also remains unsubstantiated." The matter then went up in appeal and the plaintiff being now in a difficulty, applied to the learned District Judge asking him to exercise his appellate powers and issue a commission. But before he came to give his reasons for declining to issue a commission at the appellate stage, he considered the weight to be attached to ''the evidence of Nazir Ahmad, the Amin, who was deputed to the spot by the Sub-divisional Officer of Jahanabad in a proceeding u/s 107, Criminal P.C. He gave several reasons for which he was not inclined to rely upon this witness and he referred to the allegations put forward in a written statement by the defendants in which they challenged the correctness of the Amin''s map and asked for an accurate map of the alleged encroachments: see paras. 2 and 8 of the written statement. "The learned Munsif," he observed:

himself suggested that a commission should be taken out for measurement of the alleged encroachments, but this suggestion was not taken up by the plaintiffs.

The learned District Judge also remarks:

Mr. L.K. Das urges that the taking out of a commission was really unnecessary and that the Court could have satisfied itself as to the truth of the plaintiff-appellant''s story by making a local inspection.

In the alternative, Mr. L.K. Das argued that if the Appellate Court considered that a commission should have been taken out, his client was ready to take out one then. The learned District Judge then pointed out that it was not the duty of the Court to make a local inspection in order to find out the encroachments as that was the very point to be decided in the case. Local inspection is necessary only to understand the evidence and not to convert the Court into a witness of the very fact which is under dispute before him. The learned District Judge in the end declined to accede to the prayer of the plaintiff to issue a com. mission. He then dealt with the evidence on the record and agreeing with the Munsif, dismissed the suit of the plaintiff. Hence this appeal before me.

It is argued by, the learned advocate appearing for the appellant that a commission had already been taken out before the Sub-divisional Officer, and the plain, tiff thought that she could rely upon that report and if the trial Court did not for reasons, good or bad, think it satisfactory it was the duty of the trial Court to issue a commission itself. He therefore argued that his client had been deprived of a fair trial by the course adopted by the learned Munsif and the learned District Judge. He also argued that the learned District Judge was under an erroneous view of the law when he thought that the issuing of a commission was actually allowing fresh evidence to be adduced by the appellant in the appellate stage and he draws attention to the observation of the learned District Judge that

the Appellate Court''s powers to permit fresh evidence to be adduced are not intended to be used to. enable a party to fill up lacuna in its evidence.

Reliance was placed before me upon the case in Tirthabasi Sing v. Bepin Krishna Roy A.I.R (1917) Cal. 573, but the later case of this Court reported in Sona Kuer v. Baidya Nath Sahay A.I.R (1926) Pat. 462 lays down, in my opinion, the accurate view, namely that it is not a question of law as to whether a Subordinate Court exercising his appellate powers refuses to issue a com. mission after rejecting the Commissioner''s report which is merely a basis of evidence before him.

Reliance was then placed upon a recent decision of this Court in Deb Narain Kundu v. Amrita Lal Sil A.I.R (1938) Pat. 421 where a Division Bench of this Court in the circumstances stated therein, set aside the decision of the lower Appellate Court and directed him to dispose of the case in accordance with law after appointing a fresh commission for local investigation. But in that case the dispute between the parties was as to whether the disputed land fell within the area comprised with the admitted boundaries in the two deeds which were Exs. 2 and 4 in that case. The parties had taken out a Commissioner who made a local investigation and submitted his map and report from which it was clear that the disputed land fell within the boundaries specified in the plaintiff''s title, deed. The Commissioner had followed the directions of the Court as given in his order. The important circumstance in that case was that

to this report of the Commissioner, no objection was taken by either side to the correctness of the map and the report.

Now that being so, the matter apparently assumed a different aspect. When the learned Subordinate Judge declined to act on his map and report on the ground that "he located Bishun Dayal Shah''s land on the western boundary, relying on enquiries on the spot," the learned Judges were of opinion, that another commission ought to have been issued. At p. 422 this important observation is found:

It is true that a Court when it rejects a Commissioner''s report is not bound to issue a fresh commission if the other evidence on the record is sufficient for the disposal of the case. In the present case, a local investigation was essentially necessary in order to determine the identity of the land. The Commissioner''s map was an important piece of evidence in support of the plaintiff''s case, and the learned Subordinate Judge when he rejected the map and report, should have, in the exercise of his judicial discretion, issued a fresh commission.

The learned Deputy Commissioner in appeal from that decision did not at all consider the map and the report; in other words there was no finding of the Appellate Court as to whether the decision of the Munsif that the map and the report were not to be relied upon was correct or not. On that ground alone the decision of the learned Deputy Commissioner in appeal was liable to be set aside. I do not take this case as an authority laying down a proposition of law that in every case where an Appellate Court rejects the Commissioner''s report, he is bound in law to issue another commission.

In every case the superior Court is to see whether the Sub-ordinate Courts have exercised their discretion judiciously or capriciously. In the present case I am not satisfied that the two Courts below have exercised the discretion in the least capricious or arbitrary manner. The plaintiff notwithstanding the challenge thrown out by the defendants before the trial began and notwithstanding the suggestion of the learned Munsif when the trial began, insisted upon a decision of her case on the materials which she was able to produce, and if ultimately the Courts of fact have declined to act on these materials, the litigation cannot be allowed to be prolonged simply to give the plaintiff an opportunity to bring forth new evidence.

In my opinion, the appeal has been rightly dismissed by the learned District Judge and it must be dismissed with costs by me here also. Leave to appeal is refused.