NAND KISHORE RAI Vs. BGANESH PRASAD RAI

JUDGEMENT

(1.) I had to request Mr. Varma not to press his argument which was in conflict with an admission made in the lower appellate Court by his client's pleader. What is stated in the judgment of the lower appellate Court dated 27 July 1926 is this: The respondents pleader has admitted that if the caves be found to project over the rasta land then there can be no question that the projecting portion is liable to removal.

(2.) Mr. Varma argues that this was an admission of law. Whether an admission of law or an admission of fact, when the representative of a party makes a statement that party is bound thereby, and it would be doing great injustice to a Subordinate Court of law to reopen a matter there which has been decided by that Court on the admission of a pleader of a party. The amin's map is accepted as correct. In accordance with that map water from certain eaves of the new building of the defendant appellant falls on common rasta (pathway) of the parties. Those eaves must be removed as admitted by the defendant's own pleader in the lower appellate Court. There is, therefore, nothing in the argument that even if the water drops on this common land the defendant is entitled to drop water on that land.

(3.) The lower appellate Court was quite wrong in issuing a commission to some person other than the amin. Ch. 3, Rule 37, General Rules (Civil) applicable to Subordinate Courts is never attended to by the Subordinate Courts. That is a very salutary rule: that commissions other than commissions for the examination of witnesses or commissions to examine accounts should not be issued to persons other than civil Court amins except when it is impracticable, in consequence of temporary pressure of business or for some other good and sufficient reason, to have them executed by civil Court amins, and in every case in which a person other than a civil Court amin is employed, the reason shall be made clearly to appear on the proceedings.