Decided on July 31,1952

ASHUTOSH Appellant
R.C.DEY Respondents


Das, J. - (1.) This application in revision is directed against an order of the learned Additional Subordinate Judge of Dhanbad dated 19-3-1951. The application first came up for hearing before a single Judge, who referred it to a Division Bench for decision.
(2.) The material facts are the following. The petitioners are defendants in the suit. The plaintiff-opposite party brought the suit for a declaration of his title to a certain colliery and for fixing the northern and eastern boundaries of the said colliery. He also asked for mesne profits in respect of coal which the petitioners were alleged to have taken away by encroaching on his colliery. A Commissioner was appointed in the suit at the instance of the plaintiff-opposite party. The commissioner was asked (a) to survey the colliery and fix its northern and eastern boundaries; (b) to ascertain the extent of the encroachment, if any, alleged to have been made by the petitioners; and (c) to ascertain the amount of coal alleged to have taken away by them. The commissioner submitted a report to which the present petitioners filed an objection, mainly on the ground that the commissioner had not correctly fixed the position of a trijunction pillar. By the order complained of, the learned Subordinate Judge considered the objection and held that the commissioner's report was fit to be accepted, and said that the report was confirmed. It is against this order of the learned Subordinate Judge that the present rule is directed.
(3.) The contention of learned counsel for the petitioners is that by reason of the provisions of Rule 10 of Order 26, Civil P. C., it was not open to the learned Subordinate Judge to consider, and confirm the report of the commissioner at a stage earlier than the hearing of the suit on merits. Learned counsel has referred particularly to Sub-rules (2) and (3) of Rule 10 of Order 26. Sub-rules (2) and (3) are in these terms : "(2) The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record: but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to. his report, or as to the manner in which he has made the investigation. (3) Where the Court is for any reason dissatisfied with the proceedings of the Com- missioner, it may direct such further inquiry to be made as it shall think fit." ;

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