BANSI SINGH Vs. CHAKRADHAR PRASAD

JUDGEMENT

(1.) This appeal is by the defendants arising out of an action in which the plaintiffs claimed possession of certain property which the defendants contended they had purchased under a sale deed of 15 May 1925. It is unnecessary to state the details of the case considered by the learned Judges in the Courts below, because only two points come up for consideration before us. One I propose to deal with at once for the purpose of disposing of it, and that is whether the learned Judge was in error in not calling for a further Commissioner's report, having not accepted the evidence of the Commissioner nor the report that he made.

(2.) Apparently the question upon which the Commissioner was asked to report was whether there had been an encroachment on the defendant's land. This was not for the purpose of deciding any question of trespass but for assisting the Court in coming to the conclusion whether or not the defence, that consent to transfer the land had been given by the landlords, was true. Shortly, the case of the defendants was that such consent had been given and that subsequent to the consent there had been an exchange of land, and the land which the defendants exchanged with the plaintiffs had been built upon by the plaintiffs. This piece of land as far as my memory goes is 6 dhurs in area. That statement in the report of the Commissioner as to whether buildings of the plaintiffs were actually upon the land in dispute was not evidence of any agreement on the part of the landlords to the transfer but was mere evidence of the fact whether buildings stood thereon or not. Had the Commissioner's report been directed against any particular point which had been advanced by the parties, even so the report and the evidence of the Commissioner himself was nothing more than evidence in the case which the learned Judge in the Court below was entitled to accept or reject as he would. Both parties apparently had given evidence on this matter and the fact that the learned Judge did not accept the Commissioner's report in my judgment does not support the appellants contention that the judgment of the Judge in the Court below is erroneous in point of law and that another Commissioner should have been appointed to report with regard to the matter.

(3.) The other question was whether the tenancy was permanent and whether it was transferable. The Judge in the Court below has held that it was neither permanent, nor was it transferable, nor was the consent of the landlords given. That being the state of facts as found by the Judge in the Court below, Dr. Mitter on behalf of the appellants seeks to contend in this Court that a tenancy not governed by the Bihar Tenancy Act and coming into existence before the Transfer of Property Act (not being governed by that Act also) was transferable without the consent of the landlord. Shortly stated, I should have come to the conclusion, considering the authorities on this matter, that that point could not at this time of day be questioned.