Patna High Court
Dawarka Prasad And Anr. vs Makhu Lal on 9 July, 1919
Equivalent citations: AIR 1919 PATNA 517
JUDGMENT Das, J.
1. This appeal arises out of a suit brought by the appellants for ejectment of the respondent from the land in dispute, on the ground that the defendant has used the land in a manner which renders it unfit for the purposes of the tenancy. In other words, the suit was a suit under the provisions of Section 155 of the Bengal Tenancy Act.
2. Now the complaint of the plaintiffs is that the defendant has erected a structure on 6 cottahs of agricultural land which the defendant purchased from one Phagu, who was the original tenant. The defendant on the other hand maintains that the structure was not raised on the 6 cottahs of land which he purchased from Phagu, but on one cottah of land which was let out to the defendant for building his house and which adjoins the six cottahs.
3. The Court of first instance thought that it was difficult to say exactly whether the disputed houses stand over the disputed land or over one cottah of land which was settled with the defendant. He, however, held a local inspection and, as a result of his local inspection, came to the conclusion that a portion of the house stood on the 6 cottahs of land but that the remaining portion of the house stood on the one cottah of land. In the result he granted a modified decree to the plaintiffs. There was an appeal by both parties to the lower Appellate Court. The respondent complained that the Court of first instance was incompetent to grant any decree at all in favour of the plaintiffs. The respondent's appeal succeeded before the lower Appellate Court. The appellants on the other hand maintained that the lower Appellate Court should have granted them a decree for ejectment under Section 155 of the Bengal Tenancy Act. The lower Appellate Court says this: "The learned lower Court made a careful local enquiry and was satisfied that these other structures do not stand on the 6 cottahs. I do not see how the appellant's contention can be accepted." It is clear to me, therefore, that the lower Appellate Court relied entirely upon the local investigation conducted by the Court of the first instance.
4. The question, whether a Court is entitled, under the new Civil Procedure Code, to hold a local enquiry himself has been raised in several cases, but so far as I know, has not yet been decided. So far as the English cases are concerned, it is clear that a Court is not entitled to hold a local inspection inasmuch as it may hamper the Court in coming to a conclusion on the evidence before it. But the Civil Procedure Code of 1882 did undoubtedly, empower a Court to hold a local inspection but Order XXVI, Rule 9, which, in my opinion, is a complete code on the subject, gives no power whatever to a Court to hold a local inspection. The point is an interesting one and it is interesting to compare the wording of Section 392 of the Code of 1882 with the wording of Order XXVI, Rule 9. Section 392 of the Code of 1882 provided as follows:
In any suit or proceeding in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits, or damages or annual net profits, and the same cannot be conveniently conducted by the Judge in person, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court.
5. Order XXVI, Rule 9, however, provides that: "In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market-value of any property, or the amount of any mesne profits, or damages or annual net profits the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court."
6. It will be noticed that the words occurring in Section 392, viz., "and the same cannot be conveniently conducted by the Judge in person" have been altogether omitted in Order XXVI, Rule 9, and it is with reference to this that Mr. Justice Mookerjee in the case of Rai Kishore Ghose v. Kumudini Kanta Ghose 14 Ind. Cas. 377 : 15 C.L.J. 138 says as follows: "It may be pointed out, however, that Order XXVI, Rule 9, of the Code of 1908, which corresponds to Section 392, omits the words 'and the same cannot be conveniently conducted by the Judge in person' and when Rule 9 requires to be construed, it may be a matter for argument that the intention of the Legislature was to adopt the English rule." The English rule, as I have said before, does not allow a Judge to hold a local inspection himself.
7. But whether under the new Code a Judge is entitled to hold a local inspection or not, it is perfectly clear that he can only hold it for the purpose of understanding the evidence and for no other purpose. He must still decide the case on the evidence adduced before him and if he finds that it is impossible to decide the case on the evidence before him, he his ample power under Order XXVI, Rule 9, to issue a commission to such person as he thinks fit to make such investigation and to report thereon to Court. The complaint of the Courts below has been that the plaintiffs did not apply for issue of commission, but, in my opinion, if the Court thought that it was impossible for it to determine the question at issue between the parties without a local investigation, it was not only competent to him to issue a commission but it was his duty to do so, and there can be no doubt that the Court of first instance undoubtedly thought it could not do complete justice between the parties without local investigation. The fact that he himself conducted the local investigation shews conclusively that in his opinion complete justice could not be done without such an investigation.
8. The learned Vakil appearing on behalf of the respondent argues that the Court of first instance decided this case not only on the result of his local inspection bat on the evidence adduced before it. I am unable to agree with the learned Vakil on this point. Bat whatever may have been the opinion of the Court of first instance, it is to my mini clear beyond doubt that the lower Appellate Court based its decision on the local inspection held by the Munsif and on nothing else. In my opinion this judgment cannot be sustained. I would, therefore, allow this appeal and remit the case to the lower Appellate Court with a direction that the lower Appellate Court should remit it to the Court of first instance in order to enable it to decide the questions at issue between the parties. If the Court of first instance thinks that it is unable to decide the case without a local investigation or if the plaintiff makes an application before it for the issue of a commission, then the Court of first instance will have power under Order XXVI, Rule 9, to issue a commission to such person as it thinks fit for the purpose of holding a local investigation and to make a report to the Court.
9. The appellants are entitled to the costs of this appeal and of the appeal to the lower Appellate Court. The costs incurred in the Court of first instance will abide the result and will be disposed of by that Court.
10. The parties will not be permitted to adduce any further evidence before the Court of first instance either on the question of damage or on any other question at all.