BIBHUTI BHUSHAN BANK Vs. SADHAN CHANDRA SHEET

JUDGEMENT

(1.) A tamarind tree, the small plot of land on which it stands and the alleged mis-appropriation of 15 seers of tamarind led to the institution of the suit for declaration of title, injunction and for damages, total value being laid at only Rs. 20/- put of which this Second Appeal arises. The plaintiffs being unsuccessful in both the Courts below, fought the battle royal for two days in this Court through their learned Advocate Mr. A. D. Mukherjee, defended by Mr. P. N. Mitra, the learned Advocate for the respondent.

(2.) The plaintiffs claim that the land and the tree appertain to their Bastu plot (No. 6930). The defendants on the other hand, claim that they appertain to their tank and its banks (Plot No. 6929), being on the west of the plaintiffs' plot, having no gap between the two. Plaintiffs rest their title on two Kobalas dated May 16 and June 4, both of the year 1891. Defendants rest their title on an unregistered Patta of 1282 B.S. (1875) followed by a Kobala of the year 1929. Besides the said and other documentary evidence, oral evidence was adduced by both the parties.

(3.) At the plaintiffs' instance, a Pleader-Commissioner was appointed for local investigation. He submitted a report, which being found defective, was rejected by the Trial Court. To the credit of the Commissioner he lost even the original Case Map, A second Commissioner was appointed. To the second report again, (as criticism is usually the Commissioner's lot) both sides filed objections, The Court of appeal below without relying on the Commissioner's report found that the plaintiffs, by their Kobalas have not purchased the disputed land on which the tree stands and further found that the tree referred to in the defendant's Patta and the Kobala was the tree in dispute and the same was within the defendants' tank and its banks. The conclusion arrived at by the Commissioner that the tree is within the ambit of the land demised by the Patta is accepted by the learned Subordinate Judge in appeal, because the same appeared to him to be correct, in view of other evidences on the record.