Patna High Court
Musammat Sone Kuar And Ors. vs Baidyanath Sahay on 17 May, 1926
Equivalent citations: 96IND. CAS.327, AIR 1926 PATNA 462(2)
JUDGMENT Dawson Miller, C.J.
1. This case arises out of a boundary dispute between the proprietors of neighbouring estates. The plaintiffs succeeded as to part of their claim in the trial Court and on appeal to the District Judge the whole of their claim was decreed.
2. Before the trial Court the defendants applied for the appointment of a Commissioner to inspect the locality and prepare a map and report the result of his inspection. This he did, but the report of his inspection although in some respects in favour of the defendants was adversely criticised by the learned District Judge. The Record of Rights was in favour of the plaintiffs, and the defendants placed no documents before the Commissioner to rebut the presumption arising from the record. They relied merely on certain physical features of the ground which they contended supported their case. The Commissioner could not come to any definite findings on such materials. He, however, prepared two rough maps which supported the defendants. At the same time although he was asked to locate the plots in dispute and to ascertain whether they formed part of the plaintiffs' mouzd according to the survey map, he said he could not do so on account of insufficient materials.
3. The learned District Judge on appeal described the report as perfunctory and came to the conclusion that it was based on surmise and was not supported by the evidence. He accepted the Record of Rights and the Survey map which were supported by the oral and documentary evidence of the plaintiffs and he gave valid reasons for preferring the survey authorities' map to those prepared by the Commissioner.
4. The defendants have appealed to this Court and the only point urged in appeal is that the Commissioner's report having been found to be unsatisfactory, the District Judge should have appointed. another Commissioner to make a fresh report. It does not appear that he was asked to do so, nor is this in the present instance, in my opinion, a good ground of appeal. The Commissioner's report was merely evidence in the case. Although generally accepted, when the Commissioner performs his duties satisfactorily, it is not binding upon the Court. The Court has full power to arrive at its own conclusions even if they are at variance with the report, and I am not prepared to hold that the mere fact that the report is based upon inconclusive materials or upon an inspection indifferently performed imposes an imperative duty upon the Court to order a fresh inspection. In such cases, the Court must exercise its discretion and may or may not require afresh inspection. If the Court considers the evidence sufficient to enable it to decide the case, it has, in my opinion, full discretion in the matter; and unless a higher tribunal finds that that discretion was improperly exercised, its judgment cannot be called in question merely because it refrained from ordering a fresh inspection. In the present instance, after reading the careful judgment of the learned District Judge, I consider that he exercised his discretion wisely. He was satisfied that the other evidence on the record was to be preferred to the Commissioner's report based as it was on unsubstantial foundations. There was every reason to suppose that had the report been based upon a more careful inspection it would not have supported the defendants case.
5. Our attention has been drawn to the case of Tirthabasi Singh Roy v. Bepin Krishna Roy 34 Ind. Cas. 30 : 23 C.L.J. 600. In my opinion that decision lays down no general principle that in all cases where the Commissioner's report is not accepted there must be a second enquiry. Each case must be considered upon its own particular facts and I am certainly not prepared to say that the mere fact that the learned District Judge has not accepted the Commissioner's report, nor the fact that the inspection has not been very satisfactorily carried out is, in itself, a ground upon which the Court must be compelled to order a fresh inspection.
6. In my opinion this appeal should be dismissed with costs.
Foster, J.
7. I agree.