Asutosh Mookerjee, Acting C.J.
1. This is an appeal by the plaintiff in a suit for recovery of possession of land on declaration of title.
2. The case for the plaintiff is that, the disputed land appertains to Taluk Ratana ballav, the case for the defendants is that it is included in Taluk Golam Ali. The Court of first instance appointed a Commissioner to identify the lands with reference to the thak map, The contesting defendant did not appear before the Commissioner, with the result that his proceedings were held ex parts. The report he submitted supported the claim of the plaintiff. There can be no doubt the Commissioner adopted the only course which was open to his, namely, to proceed ex parte in the absense of the defendants. In such circumstances, the defendants would not ordinarily be entitled to take objection to the report of the Commissioner, as was pointed out by Sir Barnes Peacock, C.J., in the case of Eshan Chunder Chuckerbutty v. Soorjo Loll Gosain Marsh. 139 : 1 Ind. Jur. (o.s.) 3 : W.R.F.B. 1, which was followed in Bamun Doss Mookerjee v. Brojo Kishore Mitter 6 W.R. 130. See also the decision of the Judicial Committee in Meer Mahomed Tuque v. Jadunath Jha 16 W.R.P.C. 28. The defendants, however, appeared in Court, and were allowed to take exceptions to the report of the Commissioner, They prayed, that the Commissioner might be examined, so that they might establish that the proceedings had been defensive. The Court refused the application, apparently on the ground that there had been laches on their part. The defendants then did not contest the claim and the suit was decreed ex parte. Subsequently, the defendants applied to have the ex parte decree set aside. This application was granted, and the suit was restored. The defendants then prayed for a fresh local investigation. This application was refused Some months later, the defendant product two documents which had not been previously filed: one of these was a conveyance, the other was a lease. To identify the lands covered by these two document the Court appointed a second Commissioner who prepared a sketch map. The case then came before the Trial Court again, and that Court accepted the conclusions of the first Commissioner in preference to the view taken by the second Commissioner. The result was that a decree was again made in favour of the plaintiff. On appeal the Subordinate Judge has rejected the report of the first Commissioner, on ground which the Commissioner had no opportunity to controvert, and has accepted the report of the second Commissioner; on this basis, he has finally dismissed the suit.
3. On the present appeal, it has been argued on behalf of the appellant that the procedure adopted by the Subordinate Judge was substantially defective within the meaning of Clause (c) of Section 100 of the Code of Civil Procedure and that the matter should be re investigated. We are of opinion that this contention is well founded and must prevail.
4. No doubt, as was pointed out by this Court in the case of Sitaram v. Ram Prosad Ram 22 Ind. Cas. 858 : 19 C.L.J. 87 : 18 C.W.N. 697, the Court has a discretion to examine the Commissioner as a witness upon an application by other party, but if the report of the Commissioner is attacked on grounds which require explanation, the necessary that the Commissioner who has anted as an expert should be examined as a witness and furnish the explanation required in justification of the report submitted by him. This is clear from the judgment of the Judicial Committee in the case of Raj kumar Roy v. Gobind Chundur Roy 19 C. 660 (P.C.) : 19 I.A. 140 : 6 Sar. P.C.J. 140 : 9 Ind. Dec. (N.S.) 883. The first defect in the procedure adopted by the Court below is that the report of the first Commissioner was rejected without any opportunity afforded to the Commissioner to meet objections raised by the defendants who neither appeared nor took care to please the objection, before him for consideration. It has been pointed out by the Judicial Committee in the case of Ranee Surut Soondree Deaea v. Baboo Prosonna Coomar Tagore 13 M.I.A. 607 : 15 W.R.P.C. 20 : 6 B.L.R. 677 : 2 Suth. P.C.J. 393 : 2 Sar. P.C.J. 632 : 20 E.R. 677, that, in circumstances like these, it is not safe for a Court of Appeal V to act as an expert and to sit in judgment over the Court below in considering the report of a Commissioner: Monkee Dumber Sahee v. Monkee Bhullundur Sahee 15 W.R. 423.
5. The second defect in procedure is that the investigation of the second Commissioner was imperfect and insufficient. In order that the rights of the parties may be satisfactorily determined, the matter must be investigated in its entirety; in other words, the question whether the thak map has or has not been rebutted by the documents produced by the defendants at a latest age of the case should be considered by one Commissioner and not piecemeal by two different individuals. It is further plain that reliance should not be placed upon the sketch map when it is possible to prepare a scientific map. In view of these defects, it is impossible for us to support the judgment of the Subordinate Judge.
6. The result is that this appeal is allowed, the decree of the Subordinate Judge reversed and the case sent back to the Court of first instance to be re heard, in accordance with law. A Commissioner will be appointed, to deal with the thak map and the other documents upon which the parties rely, and the Court will pronounce judgment on the materials placed before it by the Commissioner and snob other evidence as may be brought forward by either party.
7. Costs will abide the result.
Ernest Fletcher, J.
8. I agree.