1. This second appeal comes before me from the decision of the Officiating District Judge of Bhagalpur, reversing the decision of the Munsif granting the plaintiffs' prayer in this suit. The action was one for a declaration that the lands in dispute formed part of the plaintiffs' zamindari; and, consequential upon such a declaration, for a decree for possession of the property in suit. The village of Baijnathpur-Hurdeo in which the lands forming the subject-matter of the present claim are situated formed at one time one entire estate bearing Tauzi No. 337. In 1851, there was a partition effected between the then owners of the property and Tauzi No. 337 became divided up into four separate estates, viz., Nos. 337, 3277, 3276 and 3275. The owners of estates Nos. 3275 to 3277 are defendants of the first party in the three pending analogous second appeals before me. In 1876 Tauzi No. 337 was again partitioned by a Collectorate partition effected under the Partition of Estates Act 8 of 1876; and by that partition of 1876 the plaintiffs' predecessors-in-title were allotted the portions of land numbered 4842 and 4844. Plaintiffs subsequently acquired the interest in these lands by purchase from the Marwaris who were the previous owners thereof; and the plaintiffs' contention is that a portion of the land covered by Nos. 4842 and 4844 has been appropriated by the first party defendants in these three second appeals. The plaintiffs claim: in Second Appeal No. 4094, 28 bighas 16 cottas 14 dhurs; in respect of Second Appeal No. 4096, 21 bighas 6 cottas 3 dhurs; and in Second Appeal No. 4095, 16 bighas, 15 cottas and 6 dhurs. With the assent of the parties a Commissioner was sent out to examine the boundary or boundaries of the property as compared with the batwara khasra map of 1876; and the Commissioner having gone to the spot made a local inspection and reported to the Court that the plaintiff was not entitled to the full amount of the land which he claimed; but that he was entitled to a lesser amount.

2. He reported that in respect of Second Appeal No. 4094 the plaintiff was entitled to 19 bighas 19 cottas and 9 dhurs; in respect of Second Appeal No. 4096, 17 bighas 11 cottas and 2 dhurs and in respect of Second Appeal No. 4095, 8 bighas 19 cottas and 11 dhurs. The learned Munsif considered the case with the greatest possible care and industry; and he arrived at the conclusion that the plaintiff should have a decree for the amount of land which, according to the Commissioner, was clearly belonging to him. The Munsif acted upon the batwara khasra map of 1876, and treated it as evidence in the case. The Commissioner's report remained unchallenged and none of the parties to the suit called upon the Court to require the Commissioner to submit himself for examination or cross-examination upon the report; and the learned Munsif was satisfied from the report and from a comparison of the maps that the Commissioner's report was unchallengeable; and so he acted upon that report.

3. The first contention put forward by Mr. Das, who appears on behalf of the plaintiff, is that the learned Judge on appeal was wrong in reversing the judgment of the Munsif on the grounds specified by the learned Judge. The first ground that the learned Judge on appeal gives for reversing the Munsif's decision, is that the learned Munsif wrongly admitted in evidence the batwara khasra map of 1876. In my opinion the learned Judge was wrong in so stating. I think that the batwara khasra map of 1876, which was brought into existence in pursuance of a partition effected under the Partition of Estates Act, 8 of 1876, by the Collector, was document of title admissible in evidence under Section 13 of the Evidence Act. Two cases are cited in support of this contention. The first is a case reported as Junmajoy Mullick v. Dwarkanath Mytee(1) and the second is a case reported as Upendra Nath Ghosh v. Chirman of the Calcutta Corporation(2). I attach great importance to the case reported as Upendra Nath Ghosh v. Chairman of the Calcutta Corporation, because it makes the point perfectly clear, if any doubt attached to the decision in the case reported as Junmajoy Mullick v. Dwarkanath Mytee. This was a decision of Vincent, J., when sitting alone, who said that he would undoubtedly hold that a batwara khasra map of the character, such as we have in the present case, would be admissible in evidence under Section 13 of the Evidence Act; and the learned Judges who decided the case on Letters Patent Appeal held that the decision of Vincent, J., in that case was right. Therefore, I hold that the lower appellate Court was wrong in rejecting the batwara khasra map as inadmissible in evidence. In my opinion it was admissible in evidence; it may not have afforded conclusive evidence in the case, but it was some evidence and the learned lower appellate Court was bound to weigh and consider it.

4. The learned Judge, however, disregarded it entirely, and has censured the Munsif for having admitted it in evidence. In my opinion the learned Judge was absolutely wrong in doing so. The second point raised by Mr. Das is that the learned Judge was wrong in rejecting the Commissioner's report. In my opinion when a Commissioner is sent down to hold a local inspection and to make a report thereon and this report is subsequently unchallenged by either party, it is clearly the duty of the Court, if for any reason the Court thinks that it is not an accurate report, to give the Commissioner an opportunity of giving evidence in support of his report. But to find fault with his report behind his back and reject it in toto without giving him any opportunity whatsoever of substantiating his report is, in my opinion, against established practice. I think the learned Judge wrongly disregarded the Commissioner's report and failed to attach sufficient weight to it. If the learned Judge wanted to treat the report as inaccurate he should have done so in the proper way; but in the absence of any such procedure he was bound to attach due weight to the Commissioner's report, as it stood unchallenged by either party to the suit. Mr. Pugh refers me to a case decided in this Court where a Commissioner's report was rejected on appeal by the High Court, although none of the parties had challenged it in the two lower Courts.

5. But the circumstances governing that case were quite different from those governing this case. In the case referred to there was an obvious and patent error in the report; and where there is material error in the report so as to make it abundantly clear that it is wrong, it is then the duty of the Court to disregard it or send it back for review or re-consideration by the Commissioner. The third point put forward by Mr. Das is that the decision of the learned Judge is wrong in point of law as to the question of limitation arising for consideration in this case. This is the aspect of the case which has afforded me some difficulty; but I am satisfied with the result at which I have arrived. I do not think that the judgment of the lower appellate Court on this point of the case is at all satisfactory, I do not think that he has dealt with the case fairly” or properly, having regard to the findings of the learned Munsif. I think that by reason of his having excluded the batwara khasra map, the learned Judge has fallen into a grave error which has permeated his whole judgment. I hold that the batwara khasra map was some evidence of the possession and title of the plaintiffs to the lands in suit; and thus the plaintiffs would, by virtue of this batwara khasra map, have established their possession of the lands in suit in the year 1876. The learned Judge spent most of his time in the discussion of the question as to whether the plaintiffs ever acquired possession, I think that the maps show that they did get possession and, in point of law, possession once acquired continued until some other party establishes by proof that the party in possession has been dispossessed. The learned Judge has not considered that aspect of the case at all; and all that he did consider was when the plaintiffs acquired possession as if they had never antecedently been in possession. In my opinion the Judge has fallen hopelessly into error by disregarding a matter of evidence which he ought to have taken into consideration. Accordingly I am unable to agree with him in his finding on the question of limitation.

6. There is another material point which the learned Judge on appeal has disregarded, and that is the finding of the learned Munsif with regard to the entry in the Record of Rights. The learned Munsif has found that notwithstanding the entry in the Record of Rights, possession of the lands in suit remained with the plaintiffs and their predecessors-in-interest up to the date of the survey proceedings; and that then the defendants by fraud, behind the back of the plaintiffs, bad the entry recorded as it is now found in the Record-of-Rights. If the finding of fact arrived at by the learned Munsif is justified by evidence, as I think it is, it increases in my view the value to be attached to the batwara khasra map. For these reasons I hold that the learned Judge's judgment is in point of law erroneous. In my opinion he wrongly excluded from evidence the batwara khasra map; he wrongly rejected the Commissioner's report and he applied wrong law and wrong consideration to the established facts of this case. Accordingly with infinite regret I have to remand this case to the lower appellate Court for retrial.

7. I cannot dispose of it myself, much as I would like to do so; because there are some matters which require retrial, I very much regret that this small case, the value of the appeal being only Rupees 700, should, on account of the conduct of the lower appellate Court, remain still undisposed of. The suit was instituted in 1910, the decree of the learned Munsif is dated June 1912, and the appeal in the lower appellate Court was pronounced in July 1913, and the matter still remains undisposed of nearly four years after the institution of the suit. Let the case be remanded to the lower appellate Court for retrial coupled with a request that it may be disposed of expeditiously. I allow the appellants their costs in all the three Courts.

V.S/R.K

8. Appeal allowed.