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Debendranath Nandi v. Natha Bhuiyan Respodent.
Factual and Procedural Background
The plaintiff purchased 8 decimals of land (appertaining to plot no. 327 of Holding No. 15, village Natakhata) by registered sale deed dated 28-3-1959 (Ext. 1). On a portion measuring 0-005 decimals of that land he constructed a mud-and-thatched house. After construction the defendant was allowed to occupy the house as a monthly tenant at a rent of Rs. 3 per month. The defendant paid rent until March 1962 but thereafter defaulted. The plaintiff issued a lawyer's notice dated 16-1-1964 (Ext. 2) demanding payment of rent and vacation of the house; the defendant denied receipt and/or disputed the notice's address.
The plaintiff instituted a suit for recovery of possession of the suit land, eviction of the defendant from the suit house and consequential reliefs including arrears of rent and damages. The defendant's case was that he had constructed his own hutment on plot no. 323 under a lease from the District Board, had been occupying it for about 20 years, paid rent to the District Board (and thereafter to the State), denied being the plaintiff's tenant and denied receipt of the notice.
The trial Court found the suit house to be on plot no. 327, held that the defendant occupied it as a tenant of the plaintiff, and decreed the plaintiff's suit. On appeal the Subordinate Judge reversed that decision, holding inter alia that the plaintiff failed to prove that the suit house was on plot no. 327, that there was no reliable evidence of a landlord-tenant relationship, and that the suit was barred by limitation under Article 142 of the old Limitation Act. The plaintiff filed this second appeal to the High Court challenging the appellate Court's decision.
Legal Issues Presented
- Whether the appellate Court erred in discarding the Civil Court Commissioner's report (which the trial Court had accepted) and in deciding the dispute without directing a fresh local investigation (i.e., appointing a new commissioner) under Order 26, rule 9, Civil Procedure Code.
- Whether the plaintiff proved that the suit house is situated on plot no. 327 (as alleged) rather than plot no. 323 (as the defendant alleged), and relatedly whether the landlord-tenant relationship between the parties was established.
- Whether the suit was barred by limitation under Article 142 of the old Limitation Act, as held by the appellate Court.
Arguments of the Parties
Appellant's Arguments (Mr. Pal)
- The appellate Court committed an error of law by discarding the Civil Court Commissioner's report (which the trial Court had accepted) and proceeding to decide the matter without directing a further inquiry by another Civil Court Commissioner.
- A Civil Court Commissioner had been deputed to determine whether the suit house stood on plot no. 327 or plot no. 323; the Commissioner's second report (accepted by the trial Court) stated the house was on plot no. 327 and included a sketch map (Ext. 3).
- In view of conflicting averments and the nature of the dispute, a commissioner's local investigation was necessary; therefore, when the appellate Court rejected the earlier report, it should have directed the appointment of another commissioner rather than deciding the case on the remaining record.
- Relied on the decisions: Tirthabasi Singh Boy v. Bepin Krishna Boy (A.I.R. 1917 Cal. 573), Deb Narain Kundu v. Amritalal Sil (A.I.R. 1938 Pat. 421), and the Court's own decision in Akadasi Harichandan v. Khetramohan Misra (1970 1 C.W.R. 244) in support of the proposition that if a commissioner's report is rejected the proper course is to direct a fresh commission for local investigation.
Respondent's Arguments (Mr. Sinha)
- The appellate Court's finding that there was no landlord-tenant relationship between the parties should not be re-opened at trial because that finding was made on the assumed basis that the suit house was on plot no. 327; the appellate Court discussed the landlord-tenant issue on the assumption (not on a definitive finding) that the house was on plot no. 327.
- The appellate Court should first resolve the question of the precise location of the house (plot no. 327 or 323) via the directed local investigation; thereafter the trial Court should decide the landlord-tenant issue on the evidence already on record (except the commissioner's discarded report).
- Conceded that the appellate Court's finding that the suit was barred by limitation under Article 142 of the old Limitation Act was incorrect because the suit was instituted after the new Limitation Act came into force, which applies to this case.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Tirthabasi Singh Boy v. Bepin Krishna Boy, A.I.R. 1917 Cal. 573 | It is a substantial procedural error for a court to attempt to decide on part only of the evidence after rejecting the Commissioner's report; where a commissioner's report is rejected the proper course is to direct another commission for local investigation. | The Court relied on this decision to hold that the appellate Court was not justified in deciding the matter after discarding the commissioner's report and that the proper remedy was remand to the trial Court to appoint a fresh commissioner for local investigation. |
| Deb Narain Kundu v. Amritalal Sil, A.I.R. 1938 Pat. 421 | Expressed a similar view to the Calcutta decision regarding the necessity of directing a fresh commissioner where a commissioner's report has been rejected and local investigation is requisite. | The Court cited this Patna decision to reinforce the principle that an appellate Court should direct a fresh local enquiry rather than decide the issue on the remaining record after rejecting a commissioner's report. |
| Akadasi Harichandan v. Khetramohan Misra, 1970 1 C.W.R. 244 | The High Court (in the reported decision) accepted the view taken in the Calcutta and Patna decisions that rejection of a commissioner's report ordinarily requires remand for fresh local investigation by another commissioner. | The present Court accepted and applied the same principle, concluding that the procedure adopted by the appellate Court most probably produced an error or defect and ordering remand for fresh disposal with a new commissioner to investigate the disputed location. |
Court's Reasoning and Analysis
The Court examined the procedural history and the nature of the primary factual dispute — whether the suit house was situated on plot no. 327 (plaintiff's case) or plot no. 323 (defendant's case). Because the trial Court had deputed a Civil Court Commissioner under Order 26, rule 9, Civil Procedure Code to make a local investigation (to determine the correct position of the disputed property) and the Commissioner had submitted a report (the second report) and sketch map (Ext. 3) which the trial Court had accepted, the High Court emphasized the purpose and object of such local investigations: to obtain evidence peculiar to the spot that aids the Court in understanding and assessing other evidence on record.
The High Court explained that when, on appeal, the appellate Court discards a previously accepted commissioner's report, the proper procedure is not to decide the matter on the remaining record alone. The Court relied on the precedent that attempting to decide the case upon only part of the available evidence after rejecting the commissioner's report is a substantial procedural defect which may have produced error on the merits. Accordingly, the High Court held that the appellate Court's procedure — rejecting the commissioner's report and proceeding to decide the matter without directing a further local enquiry — was unjustified in the facts of this case.
Given the conflicting averments of the parties and the trial Court's original decision to have a local investigation, the High Court concluded that a fresh commissioner's inquiry was necessary. The Court therefore determined that the appellate Court's procedure most probably produced error or defect in the merits of the decision, making remand appropriate so that the trial Court could appoint a suitable commissioner to enquire into the specific matter earlier referred for local investigation and then dispose of the matter afresh according to law.
On the limitation issue, the Court accepted the respondent's concession that Article 142 of the old Limitation Act did not apply because the suit was instituted after the coming into force of the new Limitation Act; hence the appellate Court's finding that the suit was barred under Article 142 was incorrect and was set aside.
Holding and Implications
Core Ruling: The appeal is allowed. The judgments and decrees of both Courts below are set aside, the appellate Court's finding that the suit is barred by limitation under Article 142 of the old Limitation Act is set aside, and the case is remanded to the trial Court for fresh disposal in accordance with law and the directions in the opinion.
Consequences and Directions:
- The trial Court is to appoint a suitable Civil Court Commissioner to inquire into the precise matter earlier referred for local investigation (i.e., to determine whether the suit house stands on plot no. 327 or on plot no. 323).
- On receipt of the commissioner's fresh report, the trial Court shall dispose of the matter afresh in accordance with law, giving notice to both parties. The trial Court must then decide, on the full record including the new report, whether the defendant is liable to be evicted or whether no relief lies for the plaintiff (if the house is found on plot no. 323).
- The appellate Court's specific factual finding that there was no landlord-tenant relationship was treated as having been reached on an assumed basis; the High Court directed that the landlord-tenant issue may be addressed at trial after the locality question is resolved by fresh local investigation and appropriate consideration of the evidence.
- The appellate finding that the suit was barred by limitation under Article 142 of the old Limitation Act is set aside because the new Limitation Act applies to this case.
- The Court ordered that costs shall abide the ultimate decision of the trial Court.
The opinion does not purport to lay down a new legal principle; it applies established principles concerning the proper treatment of a rejected commissioner's report and the need for fresh local investigation where appropriate. The judgment's immediate effect is procedural (remand for fresh enquiry and fresh disposal); the opinion does not discuss broader implications beyond these direct consequences.
Appeal allowed.
S. Acharya, J.:— The sole plaintiff has filed this second appeal against the reversing decision dated 9-7-1969 of the Subordinate Judge, Balasore in Miscellaneous Appeal No. 120/6/9/3 of 1966/67/ 68(1).
2. The plaintiff's case, in short, is that he purchased 8 decimals of land on 28-3-1959 appertaining to plot no. 327 of Holding No. 15 in village Natakhata from one Rameswar Marwari of Balasore Town as per registered sale deed, Ext. 1 dated 28-3-1959, and on a portion of the said land measuring 0-005 decimals he constructed a mud and thatched house. After the construction of the house the defendant was allowed to occupy the said house as a monthly tenant on a rental of Rs. 3/- per month. He paid rent to the plaintiff regularly till March 1962, but thereafter as he defaulted in payment of the same, the plaintiff issued a notice through his lawyer on January 16, 1964 (Ext. 2) for payment of rent and for vacating possession of the house. The defendant did not accept the same, as according to him, the address given in the said notice was incorrect. Thereafter the plaintiff instituted this suit for recovery of possession of the suit land purchased by him, for eviction of the defendant from the suit house thereon and for consequential reliefs, such as recovery of arrears of rent and damages etc.
3. The defendant denied the plaint allegations, and averred that he had constructed his own hutment on a portion of plot no. 323 having taken lease of that portion of land from the District Board. According to him, he has been for the last 20 years staying in the said hutment constructed by him on plot no. 323 on his own right. He was paying rent for the occupation of the said land to the District Board, and after the abolition of the District Board, he has been paying rent to the State of Orissa. He has specifically denied to be a tenant under the plaintiff in respect of any house on plot no. 327. He denied receipt of the notice.
4. The trial Court found that the suit house was situated on a portion of plot No. 327 belonging to the plaintiff; the defendant occupied the said house as a tenant under the plaintiff, and the plaintiff was entitled to realise the arrears of rent from the defendant and to evict him from the suit house. Mostly on the aforesaid finding, the trial Court decreed the plaintiff's suit.
5. The appellate Court, inter alia, finds that the plaintiff has failed to prove that the suit house is on plot no. 327; there is no reliable evidence to prove the relationship of landlord and tenant between the parties in respect of the suit house and the suit house was never leased out to the defendant on rent. The appellate Court also finds that as per Article 142 of the old Limitation Act the suit is barred by limitation, as the plaintiff has failed to prove his possession of the house within 12 years next before the institution of the suit.
6. Mr. Pal, the learned counsel for the appellant at the outset urged that the Court below, after discarding the report of the Civil Court Commissioner, which had been accepted and acted upon by the trial Court, committed an error of law in proceeding to decide the matter thereby dismissing the suit without directing a further enquiry into the matter through another Civil Court Commissioner. In this case a Civil Court Commissioner was deputed to find out whether the suit house actually was on plot no. 327, as alleged by the plaintiff, or on plot no. 323, as alleged by the defendant. The Civil Court Commissioner in his second; report accepted by the trial Court has stated that the suit house stands on plot no. 327 and not on plot no. 323. A sketch map, Ext. 3, was also submitted by the said Commissioner in support of his above report. The trial Court accepted that report and, proceeded to decide the matter on that basis. The appellate Court on its own appreciation of the commissioner's report found that the said report was not satisfactory and so it could not rely upon the same. On that finding it discarded that report from, consideration and proceeded to decide the matter on whatever, evidence was available on record, and ultimately found that the plaintiff failed to prove that the suit house was on plot no, 327 as, there was no satisfactory evidence on record to that effect, Mr. Pal urges that the Court acted illegally in deciding the matter in the aforesaid manner after rejecting the aforesaid report of the Commissioner. In support of his contention he has cited the decisions reported in Tirthabasi Singh Boy v. Bepin Krishna Boy . A.I.R 1917 Cal. 573., Deb Narain Kundu v. Amritalal Sil . A.I.R 1938 Pat. 421., and the decision of this Court in Akadasi Harichandan v. Khetramohan Misra . 1970 1 C.W.R 244.. The facts in the above mentioned Calcutta case are almost similar to the facts of the present case and their Lordships in that decision have held as follows:—
“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 substantial error or defect in the procedure which might possibly have produced error or defect in the decision of the case upon the merits.”
7. Similar view has also been expressed in the above-mentioned Patna case on a matter almost of this nature. My learned brother, Misra, J. in the case in Akadasi Harichandan v. Khetramohan Misra, has accepted the view taken in the above-mentioned decisions of the Calcutta and the Patna High Courts. A Commissioner for local investigation is deputed under Order 26, rule 9, Civil Procedure Code when the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute or for ascertaining any other matter mentioned in the said rule. The object of local investigation under the above -provision is to obtain evidence which from its peculiar nature can best be had from the spot itself. Such evidence enables the Court to properly and correctly understand and assess the evidence on record already recorded. It clarifies or explains any point which is left doubtful on the evidence on record. The trial Court's decision in the present case to depute a Commissioner for the above purpose is indicative of the fact that in view of the evidence before the Court it considered it necessary to obtain a report from the Commissioner about the correct and actual position of the disputed property. In view of the rival averments made by the parties and in view of the evidence on record, a Commissioner's report of local investigation was absolutely necessary in this case. The appellate Court, therefore, was not justified in deciding this matter without directing issue of a fresh Commission for the aforesaid purpose. The Hon'ble Judges of the Calcutta and Patna High Courts and my learned brother Misra, J. in the above mentioned reported decision have said that the proper course under such circumstances is to direct the appointment of another commissioner calling upon him to submit a fresh report for which local investigation had been directed and made earlier in the case. On the above considerations I am satisfied that the procedure adopted by the Court below in deciding the matter in the manner aforesaid most probably has produced error or defect in the decision of the case on merits. Therefore, this is a fit case which should go back to the trial Court on remand so that the Court can appoint a suitable Commissioner to enquire into the exact matter which was earlier referred to the Commissioner for local investigation by the trial Court. On obtaining his report the trial Court shall dispose of the matter afresh in accordance with law.
8. Mr. Sinha, the learned counsel appearing for the respondent urges that the finding of the appellate Court that there was no relationship of landlord and tenant between the plaintiff and defendant should not be allowed to be re-agitated as that finding has been arrived at on the assumed basis that the suit house is on plot no. 327. The Court below has proceeded to discuss this aspect of the matter on the assumption (not on the finding) that the suit house is on plot no. 327 belonging to the plaintiff. As this finding has been arrived at on that perspective and basis, nothing will turn out on a fresh appreciation of the evidence on record, even if the Court ultimately finds that the house has been constructed on plot no. 327. Accordingly, the finding of fact of the Court below that there was no relationship of land-lord and tenant between the plaintiff and defendant, should not be allowed to be re-agitated in the trial Court, The Court below, after ascertaining at first the above-mentioned question, namely as to whether the suit house is on plot no. 327 or on plot no. 323, as directed above, should proceed to decide the matter in accordance with law on the evidence already on record, excepting the evidence and the report of the Commissioner which have been discarded by the appellate Court. In case it is found that the suit house is on plot no. 327 and the defendant is in possession of the same the Court has to decide whether he is liable to be evicted therefrom on other lawful considerations. Of course, in case it is found that the suit house is situated on plot no. 323, it goes without saying that the plaintiff can have no relief in this suit.
9. The judgments and decrees of both the Courts below are accordingly set aside and the case is remanded back to the trial Court for fresh disposal in accordance with law and the above directions, on notice to both the parties.
10. Mr. Sinha, the learned counsel for the respondent, very fairly concedes that the finding of the Court below that the suit is barred by limitation, is incorrect in view of the fact that Article 142 of the old Limitation Act, on the basis of - which this finding has been arrived at, does not apply to this case, as admittedly, the suit was instituted after the passing of the new Limitation Act, which applies to this case. Accordingly, the finding of the appellate Court that the suit is barred by limitation is hereby set aside.
11. The appeal accordingly is allowed in the terms aforesaid. The cost will abide the ultimate decision of the Court.
Appeal allowed.
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