1. This is an appeal from a judgment and decree of the Subordinate Judge of Murshidabad, dated the 9th January 1925, which reversed a judgment and decree of the Munsiff of Berhampore, dated the 30th April 1923.
2. The appeal arises out of a suit commenced by the plaintiff for rent for the last kist of 1325 and for the years 1326 to 1328 B.S., in respect of a tenure which was held by the defendant respondent under the plaintiff-appellant. Defendant's plea was that he was dispossessed from a portion of the land which he purchased at a rent sale in February 1920 and of which he got possession in May 1920 His case is that, after he had purchased the disputed tenure at a sale held at the instance of the plaintiff, he was dispossessed from plots 1 and 5 of the sale certificate 1921. The rent was a consolidated rent.
3. A local investigation was directed at the instance of the defendant for the purpose of determining as to whether the land from which he alleged he had been dispossessed by the landlord was really covered by the sale certificate. The local investigation proceeded to some extent. Evidence of certain witnesses was recorded on both sides. The costs payable to the commissioners fell short and the defendant was directed to pay the balance of the costs of the commissioner in order to enable him to complete his report. The defendant failed to pay that sum. The Munsif then directed the commissioner to return all the papers. Subsequently, at the instance of the plaintiff, the commissioner completed the map of the lands measured by him for which he was paid by the plaintiff and he submitted a letter forwarding the map and the evidence to the Munsif.
4. Upon the result of the local investigation, such as it was, and upon the other evidence in the Case, the Munsif came to the conclusion that the defendant had failed to establish his defence, and he granted a modified decree to the plaintiff for the amounts claimed for the years 1326 to 1328 B.S. with damages thereon at 25 per cent and proportionate costs.
5. An appeal was taken by the defendant to he Court of the Subordinate Judge of Murshidabad and the learned Subordinate Judge discarded the report of the commissioner, such as it was, and the evidence which was taken before him, and after discarding the evidence which was taken by, the commissioner he proceeded to deal with the appeal on the other evidence in the case and came to the conclusion that the defendant had been dispossessed from plots 1 and 5 of the plaint, and, as it was a tenancy in which the rent was a lump rent, he held that the entire rent should be suspended. He accordingly allowed the appeal and dismissed the suit of the plaintiff.
6. A second appeal has been taken to this Court by plaintiff 1, and it is contended on his behalf that the lower appellate Court was clearly in error in discarding the proceedings before the commissioner and the evidence taken before him, as the lower appellate Court seems erroneously to think that there was no report of the commissioner. We have looked into the report and we find that there was a letter, which was filed along with the map, and the evidence taken before the commissioner. As to whether there was a report, as is required strictly under Order 26, Rule 10 Civil P.C., it appears that in this case both sides proceeded in the trial Court to rely on the evidence of witnesses taken before the commissioner. As will appear from some of the observations made by the Munsif in the trial before him, the defendant-respondent relied on the evidence of one Jadu Pramanik who was examined before the commissioner as the strongest piece of evidence in his favour. Both sides having agreed to proceed not only on the evidence taken before the Munsif, but before the commissioner also, it seems a little hard that the plaintiff-appellant was told in the lower appellate Court that the case should proceed after discarding the evidence that was taken before the commissioner.
7. There has been a defect of procedure in the trial of the appeal before the lower appellate Court, such as calls for our interference under Section 100, Civil P.C., and I think that the defect has affected the merits of the case. The defendant raised the plea of dispossession and it was essential for him to establish the plea to defeat the plaintiff's suit for rent which was justly due to him.
8. In these circumstances I think that the judgment and decree of the lower appellate Court dismissing the suit should be set aside and the case should be sent back to that Court for a retrial of the appeal on the evidence which was taken before the Munsif and also on the evidence which was taken before the commissioner. Costs will abide the result.
9. I agree.