TIRTHABASI SING ROY Vs. BEPIN KRISHNA ROY

JUDGEMENT

(1.) We are of opinion that this appeal should succeed and we think that the right order will be to direct that another local inquiry should be held, and the short grounds for that opinion are these, that this case involved an inquiry into mattes which in the ordinary course ought to be inquired into on the spot and the Munsif who directed the inquiry in the first instance, in my opinion, took the right course. The report of the gentleman who was appointed to make the inquiry was acted upon by the Court of first instance, but when it came to the Subordinate Judge he came to the conclusion that the report of the Commissioner was an unsatisfactory one and could not be relied upon, and the learned gentleman who has argued this appeal has admitted that that report cannot be supported. Therefore, it seems to me that the right procedure was adopted in the first instance, namely, a local inquiry was directed, bat unfortunately, the report of the gentleman who held the inquiry must be taken as unsatisfactory and unreliable. Then the Subordinate Judge, having rejected the material which in the ordinary course, if the inquiry had been properly held, would have been most valuable, proceeds to decide the case upon what was left. We think that this was not the proper way of dealing with the matter and that he ought to have directed a second inquiry to be held, and we think that that does come within the words of Section 100, Clause (c), of the Civil Procedure Code, namely a substantial error or defect in the procedure provided by this Code... which may possibly have produced error or defect in the decision of the case upon the merits." We think that the course which the Subordinate Judge took in coming to a conclusion or, I may say without disrespect to him, in trying to come to a conclusion upon a part only of the evidence in the case, after he had rejected the Commissioner s report was a substantial error or defect in the procedure which might possibly have produced error or defect in the decision of the case upon the merits. Therefore, we think the proper order is to remit the case to the Munsif with the opinion from us that he ought to direct another inquiry to be held.

(2.) I ought to mention one fact, that the Subordinate Judge seems to have decided the very material part of the case upon the ground which is set out in page 23 of the paper-book, where he says: "The lower Court comes to this conclusion apparently on the ground that Kismat Kora belongs to the inalik of Kora proper which belongs to plaintiff. It appears, however, that Kismat Kora does not belong to the malik of Kora proper." Now as far as I understand this case and the judgment of the Munsif, it was never disputed in the Court of first instance that if the land or any part of the land belonged to Kismat Kora it belonged to the plaintiff, because there was no distinction in the Court of first instance between Kismat Kora and Kora proper. If there had been any point taken upon that in the Court of first instance, we do not know what evidence might have been led by the plaintiff with regard to that matter to show that the land, if in Kismat Kora, belonged to him. On the other hand it might be shown the other way. Now that does seem to show that there was not only material error or defect in the procedure but a wrong decision on the part of the Subordinate Judge in deciding that the land, if it belonged to Kismat Kora, did not belong to the plaintiff; as a matter of fact there had been no dispute that the land, if it belonged to Kismat Kora, belonged to the plaintiff, just as much as the land belonging to Kora proper.

(3.) The other point that was raised was a question of limitation. As I understand the judgment of the learned Judge, he has held that because it was proved that in 1900 the plaintiff was not in possession of the land which is in dispute, therefore he was barred by the Statute of Limitation. That does not seem to be a sound ground for deciding that the plaintiff is barred by the Statute of Limitation. I think this is a matter which will have to be further inquired into in the manner I have indicated. Therefore I think this appeal should be allowed.