SURENDRA NATH SEN GUPTA Vs. SECYOF STATE

JUDGEMENT

(1.) The petitioner seeks revision of the order of the Subordinate Judge of Saran to refund the fee paid to him as a civil Court commissioner, to whom a commission was issued on 8 June 1931 under Order 26, Rule 9, Civil P.C., to prepare a map and report whether the disputed land in title suit No. 5/5/7 of 1930/32/33 forms part and parcel of the plaintiffs village Sabhpur Darasikoh according to the Revenue Survey map of 1843-44 and Diara Survey map of 1863-64 and to show in the same map the position of the disputed land according to the survey of 1920 for Islands Nos. 31 and 35 and who was directed to hold a local investigation so as to prepare the map. He submitted his report on 26 August 1931 with a bill for Rs. 452 net and a request that Rs. 190 the amount in deposit (the petitioner's estimate of fee was on 3 July Rs. 200), be paid to him and the plaintiffs be called upon to deposit the balance, as their number would make it difficult to realize the amount subsequently.

(2.) In September the petitioner who had received an advance of Rs. 100 was paid Rs. 90 more and on 15 September the Subordinate Judge Mr. E.A. Khan directed that Rs. 250 more be deposited for the present. The record as sent up does not show further payments but Mr. Mitra at the Bar states that petitioner has drawn Rs. 324 in all. Objection to the report was taken on behalf of the defendant whereupon the Additional Subordinate Judge Mr. Fath held a careful inquiry and found that the work had been done in a thoroughly unsatisfactory and careless manner and was patently inaccurate, the petitioner having taken no precautions to ensure accuracy: incidentally he had not tested his fixed points, though the land was diara; he took lines in the plain table survey which were more than 40 chains in length; he did not close the circuit; and he took to the process of enlargement rather than reduction of map to bring the maps to the same scale and there were other irregularities.

(3.) The Court's order of 25 April 1932 was as follows: Commissioner's report is set aside. The commissioner is directed to do the work over again for the same fees which he has already received. If he is not inclined to do the work over again, he must refund the money when a fresh man will be sent. The petitioner next asked for fees for the work he was called upon to do and desired to evade working in the hot weather. The protest was rejected and the writ of commission was re-issued though the defendant wished it to go to a more competent person. The petitioner failed to go to the land again before the rains on various excuses. The petitioner submitted a further report on or before 22 September, which, on the defendant again objecting, came up for hearing before the Subordinate Judge Babu Gajadhar Prasad on 15 March 1933 when the following order was passed: The work to be done by the commissioner was to inspect the locality and show the position of the disputed land in comparison with certain maps. It was found by the Court that the map prepared by the commissioner was utterly unreliable and that the fixed points taken by him could not be depended upon. It is to be very much regretted that the commissioner did not go to the land again and without taking any measurements he submitted a second report on the basis of a comparative map supplied to him by the plaintiff. His actual report consists of a few lines but it comprises many pages of irrelevant and funny things which are mostly personal observations and comment. The report obviously indicates a state of mind that was dominated by personal feelings. The report cannot be accepted. It is utterly useless and it is set aside. The commissioner shall refund the fee that had been paid to him by the end of this month. The commissioner then obtained the present rule. Incidentally one result is that a long-pending suit had been held up for a year. Mr. Mitter on behalf of the petitioner contends in reliance on Bhagwat Sahai V/s. Brijbhushan AIR 1920 Pat 555 and Bhubneswar V/s. Sourendra Civil Rev. No. 630 of 1931 that this Court may interfere in revision and should do so as both Subordinate Judges are wrong in rejecting the reports of the petitioner as commissioner.