Mohammad Sadiq vs Basgit Sah and Others

Bucknill, J.—This is a second appeal. It is a very simple matter although it is unfortunate that owing to rome apparent misunderstanding there have already been no less than three or four judgments written in connexion with the matter. The appellant, who was the plaintiff, brought a suit for a declaration of his raiyati title to a certain plot of land and for recovery of possession thereof. Now, apparently, when the case came before the Munsif in the first instance he decided in the plaintiff's favour. But on appeal to the Subordinate Judge, it would seem that, on the ground that the Commissioner who had been appointed to ascertain the proper demarcation and site of the property in question had not been cross-examined, the Munsif's judgment was set aside and that the matter was remanded to the Munsif in order that the commission of might be cross-examined. The matter went back to the Munsif and the Munslr after having had the Commissioner cross-examined, on this occasion dismissed the plaintiff's case. The ground upon which he dismissed the case appears, so far as I can see, to have been that the Commissioner had made some mistakes in the way in which he had set about his work, and in consequence, the Munsif thought that the plaintiff had failed to prove his case, he, apparently, not relying upon any evidence other than that of the Commissioner. The Munsif then sent the matter back to the appellate Court with his recommendation and the Subordinate Judge came to the conclusion that the Munsif's finding was correct. Again, so far as I can see, the ground for this decision was simply that the Commissioner had made a bungle of his investigation. Now, this application come up for admission in second appeals and on its admission it seems to have, been pointed out that the fact that thee Commissioner had made a muddle of his enquiry should not in any way have prejudiced the plaintiff's position is the case. I have no doubt that what the Munsif should have done, if he found that the Commissioner's work was unsatisfactory, was to have appointed another Commissioner who would carry out the work more satisfactorily or, at any rate, in a manner intelligible and suitable to the Munsif's understanding. In these circumstances, I think it is clear than this appeal must; be allowed with coats and that the case must again unfortunately go back to the Munsif to be re-tried; and, so far as I can see, it would be highly desirable that another Commissioner should be appointed to make such observations and demarcations as are necessary to show whether or not the plaintiff's claim is sustainable. The learned vakil who at one time appeared for the respondents to this appeal has appeared in Court this morning and has informed me that be has no instructions with regard to this matter. The respondents therefore to this appeal have not been represented before me.