Sudhindra Mohan Guha, J.
1. This appeal arises out of the judgment and decree passed by Shri Satyanarayan Bhattacherjee, the learned Additional District Judge, 9th Court, Alipore, reversing those of dismissal passed by Shri P. Dulta, the learned Subordinate Judge, 4th Court at Alipore and remanding the case for fresh trial after giving the plaintiff appellant an opportunity for local investigation for relayment of her deeds of title for establishing identity with the suit plots.
2. The plaintiff commenced the suit for partition and for recovery of possession and mesne profits on the following averments:--
One Abdul Hakim auction purchased 8 annas share of the suit lands being C. S. Plots Nos. 391 and 392 appertaining to khatian No. 469 of mouza Sultanpur P. S. Dum Dum in Execution Case No. 516 of 1921 of the Court of Munsif, Sealdah and got the sale certificate. The suit lands were said to be Items Nos. 2 and 8 at the sale certificate. The remaining 8 annas share of those lands belonged to one Elejan Bibi.
3. Abdul Hakim sold his 8 annas share to Sukurjan Bibi under a registered sale deed dated 25-6-1923 along with other lands and put her in possession. Sukurjan gave 7 annas share to her daughter Kulsun Bibi and as such she had 1 anna share. The shares of Sukurjan, Kulsun Bibi and Elejan Bibi were rightly recorded in the District Settlement Khatian. On the death of Sukurjan her only daughter Kulsun Bibi inherited her 1 anna share and became owner to the extent of 8 annas share and then on the death of Kulsun Bibi her husbandSarup Mondal and son Moiman Sultan inherited the said 8 annas share. The 8 annas share of Elejan Bibi was purchased by one Mihilal Band and the defendant was subsequent transferee from him. Sarup Mondal and his son Moiman Sultan sold their 8 annas share under two registered kobalas dated 2-1-59 and 4-2-59 to the present plaintiff and put her in possession. But in the recent revisional settlement the defendant got the entire suit lands recorded in his name and unlawfully dispossessed the plaintiff in March 1959. Hence, the suit
4. The suit was contested by the defendant on a written statement denying all the material allegations in the plaint. The defendant claimed that his predecessor purchased 8 annas share of Abdul Hakim under a kobala dated 15-8-1928 and he had taken settlement of the remaining 8 annas share from Elejan Bibi in 1932. The defendant also claimed to have acquired right, title and interest to the extent of 8 annas share by adverse possession. The defendant also challenged the identity of the two plots in suit with the Items Nos. 2 and 8 of the sale certificate (Ext. 1} and the lands in the kobala (Ext. 2).
5. In spite of the objection regarding the identity raised by the defendant the plaintiff did not consider it advisable to pray for the appointment of a commissioner for local investigation. It transpires from the judgment of the trial Court that even at the time of hearing a suggestion for local investigation was made by the Court but the plaintiffs Advocate asserted that the onus for local investigation was upon the defendant, because the District Settlement Khatian was in favour of the plaintiff.
6. So, on comparing the boundaries of the lands described in the sale certificate and the sale deeds Exts. 1 and 2 and the plots in suit the learned trial Judge was of the view that the identity of the two suit plots being plots Nos. 391 and 392 with the sale certificate, Ext. 1 and the kobala of Abdul Hakim Ext. 2 could not be established. It was further held by the learned trial Judge that the plaintiff's predecessor-in-interest had never exercised any act of possession and the plaintiff also had not exercised any act of possession at any time within 12 years prior to the suit. The defendant was found to have acquired title by adverse possession. The plaintiffs suit was accordingly dismissed.
7. The plaintiff then came up in appeal before the District Judge.
8. The learned First Appellate Court observed that the specific case of the defendant was that the defendant purchased the 8 annas share of Abdul Hakim on 15-8-1928 under a registered kobala Ext. D and had taken settlement of 8 annas share of Elejan Bibi, Sukurjan Bibi claimed to have purchased the 8 annas share of Abdul Hakim in the year 1923. Thus if that sale stood, in that case the defendant could not have acquired 8 annas interest of Abdul Hakim by purchase in the year 1928 under Ext. D. It was also contended on behalf of the appellant that out of the properties auction purchased by the sale certificate Abdul Hakim had transferred five Items in favour of Sukurjan Bibi under the kobaia Ext. 2. It was also contended that Item No. 4 of the sale deed Ext. 2 was identical with Item No. 8 of the sale certificate Ext. 1 and that corresponded to the disputed Plot No. 391. Similarly, Item No. 1 of the kobala Ext. 2 was said to be identical with the property as mentioned in Item No. 2 of the sale certificate Ext. 1, which corresponded to plot No. 392, As both the sale certificate and the kobala were documents executed long before the District Settlement, the properties in the schedules of both the documents were described by boundaries. As the plaintiff had not taken any step for relayment of the properties of the sale certificate and the kobala by a competent person by means of survey the learned Subordinate Judge took great pains to examine the question of identification by comparing each of the boundary of those two Items in the two documents with reference to the C. S. Map and the Settlement record of rights published during the C. S. Settlement and the previous District Settlement. He also had taken into consideration the oral evidence as to the possession of the neighbouring plots in order to arrive at a decision. But on comparing such boundaries the learned Appellate Court could not be in agreement with the learned trial Judge. But he still observed that it was extremely risky and unsafe to base conclusion on such comparison in Court when there was way for getting the same relayed by an expert in the field. Admittedly the plaintiff had not taken any step for relayment. According to the learned Appellate Court that was undoubtedly a great failure on the part of the plaintiff but for effective adjudication on the point in dispute, it was always open to the Court to direct survey of the suit lands whenever found necessary and the parties were bound to comply with such directions.
9. With this observation the decree of dismissal passed by the learned trial Judge was set aside and the suit was sent back on remand for re-trial on this condition that the plaintiff would pray for local investigation for relayment of the lands in sale certificate Ext 1 and the kobala Ext. 2 with the suit plots. The defendant was also directed to apply for relayment of the kobala Ext. D. Thus, the trial Court was to arrive at a fresh decision on the reports of the commissioner and also on the evidence already on record and on further evidence, if any adduced by the parties.
10. Being aggrieved by the said order of the Appellate Court the defendant came up in second appeal.
11. Mr. Ranjit Kumar Banerji with reference to the decisions in the cases of Sonabai v. Gotiram Nathu reported in : AIR1956Bom160 , Middi Ramkrishna Rao v. Middi Rangayya reported in : AIR1954Mad783 , Prithwi Chand Lal Choudhury v. Sm. Oramba Sundari Dasi, reported in AIR 1949 Pat 338, promotha Nath Mazumdar v. Nagendra Nath Mazumdar, reported in (1929) 33 Cal WN 1211 argues that the powers of the Appellate Court to send a case on remand are limited. It is not for the Court to enable a party to fill up the lacuna in his case. By way of remand the Court would not help a party who was negligent and it would in no circumstance pass an order of remand benefiting the party who was not only careless and negligent but allowed the proceeding to go by default.
12. The ratio in the decisions other than the Patna High Court, is not directly on the point before us. These decisions deal with the powers of the Appellate Court for giving an opportunity to the defaulting party for adducing additional evidence. It is only the High Court of patna, in the case reported in AIR 1949 Pat 338 observed that the failure to apply for commission in trial Court is not sufficient for issuing one by Appellate Court. We would presently consider the decision of the Patna High Court in the perspective of the case in hand.
13. In the Patna case there had been no Cadastral Survey in the village, illwhich the land situated. No commission was taken out by either party for a Survey and identification of the land in suitby actual measurement on the spot. On consideration of boundaries the learned Munsif opined that the land in suit was not the land to which the Kabuliyat of the plaintiff related. He dismissed the suit. The Appellate Court on consideration of the evidence on record, found it difficult to arrive at a conclusion about the identity of the land and observed that the onus of proving the identity of the land was on the plaintiff, who was admittedly out of possession. Then the Court proceeded to accede to the suggestion of the plaintiff-appellant that in the circumstances of the case a commissioner be appointed for local investigation. The High Court reversed the judgment of the First Appellate Court by making observations like this: 'Can it be said that, in order to pronounce judgment, it was necessary to arrive at a 'correct conclusion about the identity of the land? Would it not be sufficient, even without being able definitely to identify the land settled by the Kabuliyat, if it was possible to say that the suit land was not covered by the Kabuliyat, that is to say the conclusion arrived at by the Munsif? I will add that it is, also, not sufficient to say that it is 'difficult' to arrive at a correct conclusion. The mere fact that it is difficult to decide the matter on the evidence recorded does not excuse a Court from making the attempt. The requirements of Order 41, Rule 47, Clause (c) contemplate something more than a mere difficulty in coming to a decision'. The facts are distinguishable. Moreover, it cannot be said that the principle laid down by the Patna High Court was that the Appellate Court would in no circumstance order for appointment of a commissioner for local investigation, if once the party requiring to make such prayer fails to do so. Every case is to be judged by its own facts. In this case the plaintiff laboured under the misconception of law that the onus for relayment was on the defendant, as the C. S. entry was in her favour. No exception should be taken, if the Appellate Court issues direction for local investigation, in case the party requiring to make such prayer labours under misconception of law, suffers from misunderstanding or is a victim of wrong advice, and if the Court finds that proper and effective adjudication of the point at controversy is in no way possible without relayment.
14. The Appellate Court, as contended by Mr. Banerji may not have unfettered power to remand a case for additional evidence. A party, under the law, should not be allowed to have a second opportunity to prove his case. But where without local investigation an effective adjudication of the point at issue is not at all possible, the Court apart from Order 41, Rule 23, can exercise its power under Section 151 of the C. P. Code, in the nature of remand, for the ends of justice. There is a difference between a case where a party seeks for an opportunity to adduce additional evidence or to pray for local investigation and a case where such direction comes from the Court itself. Thus in the facts, circumstances and evidence we hold that the learned Judge had every right in sending the case on remand for fresh trial after local investigation.
15. Next it is contended by Mr. Banerji that under the Mohammedan Law Sukurjan Bibi could have made an oral gift of 7 annas share by delivery of possession in favour of her daughter Kulsun Bibi but without registration under the B. T- Act no right title and interest could have been conferred upon her. Mr. S. P. Sen, the learned Advocate for the respondent concedes the point and submits that Kulsum Bibi being the only daughter also inherited to her mother and thus acquired 8 annas share.
16. It is further contended by Mr. Banerji that after the W.B.E.A. Act had come into operation, there cannot be any act of possession through co-sharer and the suit for recovery of khas possession would not lie. Mr. Sen on the other hand, points out that no such point had been taken earlier. As the suit is being sent on remand for fresh trial, parties would be entitled to raise such point in the trial Court.
17. Thus the points raised by Mr. Banerji in this Court are disposed of and we propose to confirm the impugned order. It appears that neither party prayed for local investigation of its documents of title and it is the Appellate Court which had made such direction, so what we propose is that each party would bear its own costs for relayment of documents of title irrespective of the results in the suit. In other words, such costs for local investigation would not be costs in the cause.
18. In the result, the appeal is dismissed. The judgment and decree of thelearned Additional District Judge is confirmed with this modification that the cost for local investigation would not be cost in the cause.
N.C. Mukherji, J.
19. I agree.