SHIDDHESWARI DASYA Vs. SHASHI BHUSHAN CHOWDHURY

JUDGEMENT

(1.) This appeal arises oat of a suit for recovery of possession. Bath the lower Courts have dismissed the plaintiffs suit on the ground of limitation and also on the ground that the plaintiffs failed to establish their title to the lands in suit.

(2.) The points taken on behalf of the appellants are, first, that the suit was wrongly dismissed oh the question of title without ascertaining whether the lands belonged to the plaintiffs , or to the defendants mouzah; secondly, that the onus was upon the defendants and that it was wrongly placed upon the plaintiffs by the lower Court; and thirdly, that inasmuch as it has been found by the lower Appellate Court that some of the lands in dispute were waste lands, the whole suit of the plaintiffs should not have been dismissed,

(3.) It appears that there were two mouzahs, Mouzah Bijalbar and Mouzah Shukandighi, the former belonging to the plaintiffs and the latter to the defendants. The question before the lower Courts was whether the area in dispute appertained to Mouzah Bijalbar or to Mouzah Shukandighi. The Subordinate Judge found it necessary to depute an amin in order to ascertain, by re-laying the revenue survey map of the place, whether the lauds in dispute belonged to the plaintiffs or to the defendants mouzah. After a local inquiry, the amin submitted his report and it is admitted that that report was in favour of the plaintiffs. This report was submitted by the amin on the 6th January 1906; but before that, on the 21st December 1905, an application was made by the plaintiffs in which they took exception to certain omissions said to have been made by the amin in his inquiry. This application, however, was not pressed. It appears, however, that the defendants controverter the accuracy of the results of the amines investigations at a very early period of the proceedings, and that in the end, the plaintiffs also were compelled to admit its inaccuracy. At the time of argument, after the hearing, when these defects and inaccuracies were pointed out, the plaintiffs asked the Court to order a fresh investigation which was refused. The learned Subordinate Judge in his judgment says: "They had their expert men with the amin and I cannot say that they could not know of the defects after the amin had submitted his report and map." Further on. in his judgment he says: I may as well say that if the plaintiffs men hud properly helped the amin in securing the proper position in the locality of the trijunction point, this disastrous result of the inquiry would never have occurred." It is admitted before us by the learned Vakil for the appellants that the amiris report is inaccurate. It appears that the plaintiffs took no steps after their application of the 21st December. We think that in the circumstances, the Courts below were right in refusing a fresh inquiry at the eleventh hour. It is now too late in the day to ask this Court to send this case back to the lower Court for the purpose of a fresh investigation. The amin s report is merely evidence. If a litigant is a party to such an inquiry and knows that it is carelessly and badly done and yet is content to go to trial upon it, he cannot reasonably ask at the last moment for an opportunity to give fresh evidence, because it is found that the evidence on which he willingly relied is worthless.