1. This is an appeal by defendants Nos. 1 and 2 from a judgment of the Second Additional District Judge of Dacca, dated the 14th of July, 1922.
2. The judgment of the lower Appellate Court dealt with two suits Nos. 305 and 321. The plaintiff alleged that the first and the second defendants had by erection of a building encroached beyond the land which the plaintiff had settled with them.
3. It appears that the defendants had a building in the Srinagar Bazar, that the building was blown down in the Cyclone of 1919. Thereupon, defendants Nos. 1 and 2 erected a new building and it is in respect of this building that the plaintiff alleged the encroachment, and two suits were brought and, it was alleged, that two plots of land belonging to the plaintiff had been encroached upon.
4. Suit No. 305 referred to the alleged encroachment on the west, and Suit No. 321 related to the alleged encroachment on the south and the east.
5. The learned Munsiff who tried three suits dismissed Suit No. 305 altogether. Suit No. 321 was decreed in part. The learned Munsiff made a decree that the plaintiff's alleged title to the extent of half a cubit of land in breadth lying along the length of defendants' hut and to the east thereof should be declared and established: and he made a further order granting a permanent injunction against the defendants restraining them from using jhaps horizontally to their shop in the east side.
6. When the appeal was before the lower Appellate Court, the learned Additional District Judge referred to the fact that the defendants admitted an encroachment to some extent, but on what part, whether it was on the north or south, east or west, was not clear and, apparently he was not satisfied with the decision of the Trial Court. He was not satisfied where the encroachment was or to what area the encroachment extended: and he came to the conclusion that the only satisfactory way of dealing with the case was to remand it to the lower Court for further trial after local enquiry. The result was that he made that order and remanded both the suits to the lower Court for further trial after local enquiry.
7. The learned Vakil for the defendants-appellants argued that the learned Judge had no jurisdiction to make that order: or, that at all events under the circumstances of this case he ought not to have made that order.
8. On the other hand, the learned Vakil for the respondent relied upon the decision of a Full Bench of this Court in the case of Abdul Karim Abu Ahmed Khan Ghaznavi v. The Allahabad Bank, Ltd. (1917) 44 Cal. 929, and argued that the learned Judge had jurisdiction. I content myself by referring to a passage in my judgment in that case which is to be found at page 936. It runs as follows:
The question whether it is necessary for the ends of justice to exercise such powers of remand must depend upon the circumstances of each particular case and in exercising such jurisdiction the Court must, no doubt, be careful to see that its decision is based on general legal principles and subject to the rule that if the Code does contain specific provisions which would meet the necessities of the case in question, such provisions should be followed and the inherent jurisdiction should not be invoked.
9. Assuming for the sake of argument, though I do not decide it, that the learned Judge had jurisdiction in this case to make the order of remand, in my judgment he ought not to have made it, because the Code contains specific provisions which would meet the necessities of the case. It is not disputed by the learned Vakil for the respondent that the learned Judge could have made an order that an independent surveyor should proceed to the 'locus in quo,' make measurements and give his evidence before the lower Appellate Court, having regard to the difficulty in which the learned Judge found himself. That order might have been made under Order 41, Rule 27 (b) of the Code: and in my judgment that was the course which the learned Judge ought to have followed in this case and that course would have met the necessities of this case.' Consequently, the learned Judge, even if he had jurisdiction to order a remand should not, in my opinion, have made use of it.
10. During the course of the argument my learned brother drew attention to the case of Prosunna Chandra Chattopadhya v. Baidya Nath Mistry (1920) 24 C.W.N. 708, where a course similar to that which I have indicated was directed by the learned Judges who heard the appeal.
11. The result, therefore, in my judgment is that the judgment and the order of the learned Additional District Judge so far as directed a remand must be set aside.
12. It appears that the order of the learned Additional District Judge has been carried out, and that a Civil Court Commissioner was appointed by the Trial Court to carry out the directions of the lower Appellate Court and that he has in fact made reports. The learned Vakil who appeared for the appellants has agreed, and if I may say so, wisely agreed that the reports should be submitted to the lower Appellate Court instead of to the learned Munsiff's Court, so that the learned Judge in the lower Appellate Court may have the advantage of the reports of the Civil Court Commissioner and may, if necessary, take the evidence of the Commissioner in his own Court to enable him to pronounce judgment on the appeal.
13. The learned Judge in the lower Appellate Court dealt with the question of the permanent injunction restraining the defendants from erecting the jhaps. He came to the conclusion that the defendants had failed to prove any custom entitling them to erect and use the jhaps in the manner contended for by the defendants.. Upon that point his judgment must stand. But if the defendants Nos. 1 and 2 can succeed in showing that the jhaps do not project at any time beyond the boundaries of the land settled with the defendants, then, of course, the injunction will be set aside. That will be a matter which the lower Appellate Court will consider.
14. In the circumstances of this case each party will pay his or their own costs of this appeal. All other costs will be in the discretion of the lower Appellate Court.
15. I agree.