P L D 1955 Dacca 15 (PLP)

IBRAHIM, J.--‑This appeal is by the plaintiffs who are owners of the petty settlement plot No. 16 which corresponds to Cadastral Survey plot No. 670 of Mouja Jinjira. Defendant No. 2 is the tenant of defendant No.

1. Defendant No. 1 is the owner of the petty settlement plot No. 15 which corresponds to Cadastral Survery plot No. 679 of the same Mouja. The dispute is over the "kha" schedule land which is a part of a homestead. The suit is for declaration of title to and khas possession of this piece of land on the allegation that it appertains to the petty settlement plot No. 16, and that the plaintiffs, who were in pos session, were dispossessed therefrom on the 20th of April, 1940. The defence is that it appertains to the petty settlement plot No. 15,"and that the suit is barred by limitation. A Comissioner was appointed to hold local investigation in order to ascertain whether it appertained to plot No. 16 or to plot No.

15. The plaintiffs pointed out certain pillars situated in the lands of Wahed Ali, Lal Mia and others in the close vicinity as the basis of measurement, whereas the defen dants wanted measurement on the basis of Kali Mandir in asuli land (and an ?) L‑shaped building in the diara land. The Com missioner made survey on the basis of all the three landmarks. The survey on the basis of the pillars showed that the suit land appertained to plot No. 16 whereas the survey on the basis of the Kali Mandir and the L‑shaped building showed that it appertained to plot No.

15. The Commissioner accepted the result of the survey on the basis of the pillars, opining that the Kali Mandir and L‑shaped building could not be accepted as the basis of the survey. In support of the view taken by him, he gave reasons as follows: "The C. S. map has been relayed on the basis of the permanent eastern boundary line of Ohadali" (sic) (the pillars pointed out by the plaintiffs) "(C. S. dag No. 671). By such relaying of the C. S. Map the western boundary line of C. S. dag No. 671 agrees and the western boundary line of C. S. dag No. 669 also agrees and the western line of the plaintiff's Gadighar (C. S. dag No. 255) agrees. The eastern line of the Gadighar of Ohadali in C. S. dag No. 256, agrees. The north `western corner of the defendants C. S. dag No. 254, agrees. The position of Kali Mandir in C. S. dag No. 531, shown by the defendants does not agree by such relaying and the position of the building in petty settlement dag No. 50 does not agree. The Kali Mandir as it now stands does not agree north to south in length but agrees in its length east to west. If the pucca structures such as staircase, mer, etc., in the south of the Kali Mandir be taken with the Kali Mandir building, then its length north to south agrees. C. S. map sheet No. 2 shows that there is some vacant land by the east of the Kali Mandir building in C. S. dag No.

531. But the existing eastern boundary line of the said plot almost touches the eastern face of the Kali Mandir building. On relaying the C. S. map and the petty settlement map on the basis of the northern, eastern and western line of the Kali Mandir building the entire disputed land falls outside the plaintiff's C. S. dag No. 670 and the petty settlement dag No. 16, but it comes within the ambit of defendant's C. S. dag No. 669 and petty settlement dag No.

15. By such relaying the positions of plots to the east and west of the disputed land are all changed and the western line of the plaintiff's Gadighar in C. S. dag No. 255, does not agree and the position of building in petty settlement dag No. 50, does not agree. "I accept the plaintiffs basis for relying on the following grounds : (a) Plaintiffs basis is very near to the disputed land ; (b) it lies in the same map in which the dispute has arisen ; (c) it gives satisfactory agreement with the locality as already mentioned. The area of the disputed land is 3 kattas 6 dhulis and the area of the portion falling within the plaintiff's C. S. dag No. 670 and petty settlement dag No. 16 "I reject the defendant's basis for the following reasons: (a) The basis lies at a distance of 428 cubits from the disputed land. The nearer the basis (sic) more accurate is the result. (b) It lies in C. S. map‑sheet No. 2 but the dispute has arisen in C. S. map‑sheet No. 1 and the petty settlement map. So the different maps have to be combined to relay the maps by enlargement or reduction. Hence unavoidable errors may arise. But I have eliminated those errors as far as possible. (c) It does not give a satisfactory agreeement with the plots lying east, west and south of the disputed land. "The building in petty settlement map in dag No. 50 (L‑shaped building) cannot be accepted as a basis as it is situated at a distance of about half a mile from the suit land." The Commissioner was examined, and he said that he was under the impression that the pillars on the basis of which he made the survey had been in existence at the time of the petty settlement. In evidence, however, it transpired that those pillars were not in existence at the time of the petty settlement, whereas the Kali Mandir and the L‑shaped building had been in existence at that time. On account of this dis closure the learned Subordinate judge rejected the Commis sioner's recommendation on the ground that the basis of mea surement which he had accepted was wrong inasmuch as the pillars had no existence at the time of the petty settlement, and accepted the result of the survey on the basis of the Kali Mandir and the L‑shaped building with the result that he held that the suit land appertained to the defendant's plot. In deciding to accept the result of the survey on the basis of the Kali Mandir and the L‑shaped building, the learned Subordinate judge did not consider the reasons given by the Commissioner for rejecting the same. The idea working behind this decision apparently was that if the pillars were a wrong basis of measurement, the Kali Mandir and the L‑shaped building were necessarily the correct basis. There is obviously a mistake in such an assumption ; for both might be wrong. It was no doubt open to the learned Subordinate judge to accept the result of the measurement on the basis of the Kali Mandir and the L‑shaped building ; but I think he was not right to accept it merely because the result of the survey on the basis of the pillars could not be accepted. It was necessary to decide whether apart from the result of the measurement on the basis of the pillars, the result of the relay on the basis of the other land marks could be accepted. The Commissioner is an expert in this field and in deciding this question, the reasons given by him for rejecting it cannot be ignored. It was no doubt open to the learned Subordinate A Judge to reject the reasons given by the Commissioner ; but it was nevertheless his duty to consider them. Failure to appre ciate what matters have to be considered in order to decide an issue is an error of law. The acceptance of the result of the relay on the basis of the Kali Mandir and the L‑shaped building without adverting to the reasons given by the Commissioner against it, amounts, in my opinion, to an such error. The result, therefore, is that the appeal is allowed ; the judgment and decree of the lower Appellate Court are set aside and the case is remanded to that Court for re‑hearing and disposal according to law in the light of the observations herein made. Costs of this appeal will abide the result. A. H. Case remanded.