Chandra Reddy, C.J.
1. The report submitted by the District Munsiff is that the value of the subject-matter of the suit on 4th June 1948 was Rs. 7,930/- and Rs. 15,860 as on 29th May 1960 when the appeal to the Supreme Court was proposed to be filed. The report is attacked on the ground that the District Munsiff in appointing a Commissioner to inquire into the value of the property has acted without jurisdiction. This argument is based on Order 45 Rule 5 C.P.C. and the decision Hansman Jha v. Bahuji Jah, ILR 43 Cat 225: (AIR 1916 Cal 102(1) ).
2. We do not think that this argument is admissible. Order 45, Rule 5 C.P.C. is in these words;
'In the event of any dispute arising between the parties as to the amount or value of the subject-matter of the suit in the Court of first instance, or as to the amount or value of the subject-matter in dispute on appeal to the Supreme Court, the Court to which a petition for a certificate is made under Rule 2 may, if it thinks fit, refer such dispute for report to the court of first instance, which last mentioned Court shall proceed to determine such amount or value and shall return its report together with the evidence to the court by which the reference was made'.
3. It is plain that what this rule requires is that the court from which a report is called ior should determine the amount or value of the subject-matter in dispute and return its report together with the evidence to the court by which the reference wiis made.
4. ILR 43 Cal 225 : (AIR 1916 Cal 102(1)) does not contain aiiy proposition which renders assistance to the petitioners. Ail that it lays down is that Rule 5, Order 45 C.P.C. does not empower the Court of first instance to remit the investigation to some other officer but it must be done by the Court itself. Neither the case cited nor Rule 5 prohibits the officer, who was required to investigate into the value of the subject-matter from appointing a Commissioner.
5. Order 26, Rule 9 C.P.C. empowers a Court to issue a commission to a person for the purpose of ascertaining the market value of any property directing him to make such investigation and to report thereon to the Court.
6. A reading of the above mentioned provisions clearly establishes that it is permissible for a Court to appoint a Commissioner tor the purpose of ascertaining the market value but it must determine the value of the property and should not leave it to another agency. We do not think that the trial court has in any way violated the provisions of the two sections read together, It is plain from the report that the District Munsiff has considered the evidence of the witnesses examined by the Commissioner, the physical features of the land in question, the nature of the land as also the value given by various witnesses. Admittedly, this land is described as Peda Ban jar, which means waste land of very inferior quality. The District Munsiff also pointed out:
'To bring the land under cultivation if is necessary that the land has to be levelled up and fresh earth has to be laid from a tank'.
That being the position, it is not correct to say that the District Munsiff has not done anything but depend only on the report of the Commissioner. The finding of the District Munsiff could not be challenged in any other way.
7. It follows that the finding of the DistrictMunsiff has to be accepted and the petition for leaveto appeal to the Supreme Court dismissed.