S. Acharya, J.
1. The sole plaintiff has filed this second appeal against the reversing decision dated 9-7-1969 of the Subordinate Judge, Bal asore 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 Rameshwar Marwari of Balasore town as per a redstered 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, thro ugh 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 the 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 AIR 1917 Cal 573; AIR 1938 Pat 421 and the decision of this Court reported in (1970) 1 Cut WR 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 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.'
Similar view has also been expressed in the above-mentioned Patna case on a matter almost of this nature. My learned brother, Misra, I. in the case reported in (1970) 1 Cut WR 244 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 P. C 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 the matter without directing issue of a fresh commissioner 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 decisions 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.
7. 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 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 landlord 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 records, 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.
8. 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.
9. 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.
10. The appeal accordingly is allowed in the terms aforesaid. The cost will abide the ultimate decision of the Court.