MT BIBI FATMA SOGRA Vs. SSAIDER HUSSAIN

JUDGEMENT

(1.) This is an appeal by the plaintiff arising out of a suit instituted by her for removal of two encroachments as alleged in the plaint. The dispute between the parties had been carried before the Criminal Court before the matter was taken to the Civil Court. In the Criminal Court, a Commissioner was appointed to find out the encroachments. The matter then came to the Munsif who tried the suit instituted in 1936 as Title Suit No. 63. Although a suggestion was thrown out by the Court in the course of the hearing that a commission ought to be taken out in the case, the plaintiff preferred to rely upon the evidence which she adduced and refused to take advantage of the suggestion. The learned Munsif speaks of this matter in this manner: In a case of encroachment ordinarily, it is necessary that a commission should be taken out to ascertain by actual measurement on the spot it there has been really an encroachment. No suck commission was however taken out in this case though I had even suggested to plaintiff's advocate about this course at the time of hearing. In other words the plaintiff insisted that the Court must decide upon the evidence which she was adducing in the case; she apparently relied strongly upon the report of the Commissioner who was examined before the learned Munsif to prove the report and the map which he had submitted to the Sub-divisional Officer, which are marked Exs. 5 and 5 (a) in the case. The learned Munsif was not at all impressed by the report which he describes as perfunctory and unreliable. He explains his remarks by saying that the Commissioner is admittedly a class friend of plaintiff's son M. Nehal Hasan, and as such, be cannot be said to be an altogether unbiased witness. He states further that: He admittedly went to inspect the spot when the wall in question here was not in existence at all, it (according to plaintiff's case) having been constructed in May 1935, while the Amin went to inspect in February 1935. Therefore he is incompetent to depose or report about any encroachment caused by the construction of a wall which was not in existence at all at the time he visited the spot. The learned Munsif adds: It is significant that not a single independent witness of the village has been examined nor, as I have said, any commission taken out and one cannot help thinking that these omissions have been made because the plaintiff and for the matter of that her son Moulvi Nehal Hasan were not sure of their case.

(2.) In the end the learned Munsif held that the plaintiff failed to substantiate the alleged encroachment to the western wall of their plot No. 29. He then dealing with another encroachment in Issue 9 came to the conclusion that "this encroachment also remains unsubstantiated." The matter then went up in appeal and the plaintiff being now in a difficulty, applied to the learned District Judge asking him to exercise his appellate powers and issue a commission. But before he came to give his reasons for declining to issue a commission at the appellate stage, he considered the weight to be attached to the evidence of Nazir Ahmad, the Amin, who was deputed to the spot by the Sub-divisional Officer of Jahanabad in a proceeding under Section 107, Criminal P.C. He gave several reasons for which he was not inclined to rely upon this witness and he referred to the allegations put forward in a written statement by the defendants in which they challenged the correctness of the Amin's map and asked for an accurate map of the alleged encroachments: see paras. 2 and 8 of the written statement. "The learned Munsif," he observed: himself suggested that a commission should be taken out for measurement of the alleged encroachments, but this suggestion was not taken up by the plaintiffs. The learned District Judge also remarks: Mr. L.K. Das urges that the taking out of a commission was really unnecessary and that the Court could have satisfied itself as to the truth of the plaintiff-appellant's story by making a local inspection.

(3.) In the alternative, Mr. L.K. Das argued that if the Appellate Court considered that a commission should have been taken out, his client was ready to take out one then. The learned District Judge then pointed out that it was not the duty of the Court to make a local inspection in order to find out the encroachments as that was the very point to be decided in the case. Local inspection is necessary only to understand the evidence and not to convert the Court into a witness of the very fact which is under dispute before him. The learned District Judge in the end declined to accede to the prayer of the plaintiff to issue a com. mission. He then dealt with the evidence on the record and agreeing with the Munsif, dismissed the suit of the plaintiff. Hence this appeal before me.