1. I had to request Mr. Varma not to press his argument which was in conflict with an admission made in the lower appellate Court by his client's pleader. What is stated in the judgment of the lower appellate Court dated 27th July 1926 is this:
The respondents' pleader has admitted that if the caves be found to project over the rasta land then there can be no question that the projecting portion is liable to removal.
2. Mr. Varma argues that this was an admission of law. Whether an admission of law or an admission of fact, when the representative of a party makes a statement that party is bound thereby, and it would be doing great injustice to a Subordinate Court of law to reopen a matter there which has been decided by that Court on the admission of a pleader of a party. The amin's map is accepted as correct. In accordance with that map water from certain eaves of the new building of the defendant appellant falls on common rasta (pathway) of the parties. Those eaves must be removed as admitted by the defendant's own pleader in the lower appellate Court. There is, therefore, nothing in the argument that even if the water drops on this common land the defendant is entitled to drop water on that land.
3. The lower appellate Court was quite wrong in issuing a commission to some person other than the amin. Ch. 3, Rule 37, General Rules (Civil) applicable to Subordinate Courts is never attended to by the Subordinate Courts. That is a very salutary rule:
that commissions other than commissions for the examination of witnesses or commissions to examine accounts should not be issued to persons other than civil Court amins except when it is impracticable, in consequence of temporary pressure of business or for some other good and sufficient reason, to have them executed by civil Court amins, and in every case in which a person other than a civil Court amin is employed, the reason shall be made clearly to appear on the proceedings.
4. In the lower appellate Court the defendant put in a petition for the appointment of another commissioner, and that Court light-heartedly without considering this rule, and possibly without knowledge of this rule, passed an order appointing a legal practitioner as a commissioner. This was done in defiance of a rule of this Court which is binding on every Court subordinate to this Court. Many Hon'ble Judges of this Court have complained to me as administrative Judge of the cases in which commissioner after commissioner is appointed to prepare maps creating a mass of confusion in this Court. It is not the fault of this Court that such confusion results. It is the ignorance of Subordinate Courts of rules framed by this Court which is to blame. An amin is the only person who may be deputed by a civil Court to prepare a map, and whenever any prayer is made by a party otherwise, the Court has to apply its mind to the question whether it is necessary to employ another person as commissioner or not, and if it decides that another person should be engaged as commissioner it is bound to give reasons in detail for its order, If any thought is paid to the matter as required by the rule there will be a proper check to the appointment of a large number of commissioners to which, as I have said, exception has been taken by several Hon'ble Judges in complaints addressed to me.
5. In the course of the day in another case my attention was drawn to a Bench ruling of the Madras High Court in Thottamma v. C.S. Subramaniyyan A.I.R. 1922 Mad. 219. There the Madras High Court just like the Hon'ble Judges here has deprecated the practice in Malabar of appointing successive commissioners whenever objections are filed to their reports. The observations of their Lordships may be copied here for the information of Subordinate Courts:
Now comes the question relating to the appointment of three successive commissioners by the first Court. As the procedure followed by the lower Court appeared to us to find no support in law, and as we were informed that the practice followed in this case is typical of what happens in valuing improvements in almost every Malabar suit, we think it desirable to express our emphatic disapproval of the course followed. What happened was apparently this: at first a commissioner was appointed to make the valuation. His conclusions were objected to by both the parties. Thereupon, defendant 1 asked for the appointment of a second commissioner. The plaintiff consented to this course. Once again objections were raised to the report. A third commissioner was appointed with the consent of the parties. He sent in his report and valuation. Again objections were raised. The Munsif then said that he preferred the valuation of the first commissioner as he was a respectable vakil, and the Subordinate Judge has agreed with him.
This procedure seems to us to be wholly wrong. Ordinarily when the report of a commissioner is objected to, the Court should hear the objections in open Court and decide with the aid of such evidence as it may take whether the valuation should be varied, and if so in what direction. This is the obvious duty of the Court. There may be cases in which the commissioner had so totally misconceived his duties as to render his report and valuation useless as a basis for a decision. In such cases no doubt, a new commissioner may be appointed. This would mean that the old report and valuation were superseded. But to regard the reports and valuations of the three commissioners as available data from which the option of the District Munsif to choose any one of them is to be exercised is opposed to every principle governing Courts in such matters. It means that the Court abdicates its function of deciding the matter on hearing the objection and reserves to itself the privilege of selecting one of the reports as its decision.
It certainly encourages a haphazard and careless selection of commissioners. It subjects parties to unnecessary and avoidable expense, and encumbers the records with useless papers.... We want it to be distinctly understood that the filing of objections to a report is no ground for appointing another commissioner and that in all cases where a second commissioner is appointed to do the same work, the reasons for adopting such a course must be recorded in writing to enable the appellate Court to see whether the judicial discretion has been properly exercised.
6. This appeal is dismissed with costs. A copy of this judgment shall be sent to the offending judicial officer in the present case Mr. Krishna Das wherever he may be posted at present.