SHIB CHARAN SAHU Vs. SARDA PRASAD

JUDGEMENT

(1.) This Letters Patent Appeal arises out of the following circumstances. The plaintiffs instituted a suit complaining of trespass by the defendants upon their land, and the substantial point in dispute between the parties was as to where the boundary between the two adjacent pieces of land really lay. The trial Court appointed a Commissioner and he reported that the plaintiffs contention as to the location of their boundary was correct and that the defendants had encroached on the plaintiffs land. The Court seems to have been dissatisfied with this Commissioner's report and issued a second commission to another person who reported in the contrary sense. The Court believing this second Commissioner's view of the matter dismissed the plaintiffs suit. They then went on appeal to the Subordinate Judge who took into consideration both of the reports and the other evidence in the case and came to the conclusion that the defendants had encroached on the plaintiffs land, and granted the plaintiffs a decree reversing the decision of the Munsif. The defendants then came in second appeal to this Court and the point raised before the learned Judge was that what ought to have been done in the circumstances was to issue a third commission. The learned Judge very properly rejected that suggestion, and the defendants have now come in Letters Patent Appeal.

(2.) Before us, the defendants now raise a new and even more extraordinary contention, and we have heard nothing of the contention raised before the learned Judge sitting singly. Relying upon the decisions of the Madras High Court in Kunhi Kutti Ali V/s. Muhammad Haji 54 M 239 : 130 Ind. Cas. 470 : AIR 1931 Mad 73 : 60 MLJ 450 : 32 LW 827 : (1930) MWN 1113 : Ind. Rul. (1931) Mad 390 and Kunjunni Nair V/s. Achuta Menon 55 M 656 : 138 Ind. Cas. 114 : AIR 1932 Mad.482 : 62 MLJ 629 : (1932) MWN 56 : 35 LW 614 : Ind. Rul. (1932) Mad. 512 it is argued that when a Judge issues a commission, if he is dissatisfied with the report of the Commissioner and sees fit to direct a second commission to issue, he should wipe the first Commissioner's report off the record entirely, treat it as not being evidence and decide the point on such evidence as may then remain in the shape of the second Commissioner's report and such further evidence as may be available. Now the observations of the Madras High Court to which reference was made in the cases which I have referred to, were directed not to establishing this supposed principle at all. In those judgments, the Madras High Court was endeavouring to correct a very had tendency on the part of the Munsifs of the Malabar districts who appeared to have got into the habit of sending out, simultaneous commissions to investigate the same issue of fact and then taking all the Commissioners reports into consideration and deciding as between these various reports which of them was preferable; and this habit of sending out commissions whether simultaneous or consecutive had become a nuisance which the Madras High Court very properly desired to check and put an end to. I can find in those judgments no statement of a principle such as is contended for in this appeal. There is nothing in Order XXVI, Rule 10, Civil Procedure Code, to justify such a contention. It is in the power of the trial Court to send out a second or even a third commission, and when all the materials are be-fore the Court, it may at the time of delivering judgment attach very little or no weight to the first Commissioner's report, but this is very far from saying that this amounts to requiring the first report to be wiped out of the record and not considered as evidence. That the argument is entirely unsound is seen on considering what, if it were true, would be the position in the case of an Appellate Court. The first Court's decision on the matter of fact is not final and if the contention were to be accepted;, it would prevent an Appellate Court from taking into consideration the first Commissioner's report: this consideration alone is sufficient to demonstrate the fallacy of the argument. It has been necessary to deal with this new point because of the misplaced interpretation of the Mad-ras cases which, in my opinion, lay down no such proposition as has been contended for and it is necessary to prevent this argument being raised in future to the embarrassment of lower Courts; but as a matter of practice the argument was really not even open to the appellants who did not raise it before the Judge in the Court below. I would dismiss this Letters Patent Appeal with costs. Manohar Lall, J.

(3.) I entirely agree.