- (1.) THIS is a defendants" Second Civil Appeal against the judg ment and decree of Additional Civil Judge, Allahabad dismissing the appeal and confirming the decree of the trial Court. The suit was filed by the plain tiff-respondents for possession and in junction restraining the defendant-ap pellants from interfering with their pos session over the property in dispute. The plaintiffs' case was that Jang Baha dur was the owner of the house in dis pute and after Jang Bahadur's death the plaintiffs who were the daughters of Jang Bahadur came in exclusive posses sion and continued to remain in exclu sive possession. It was further stated that on account of fire that broke out In the village most of the house was damaged and when she started to make constructions the in defendant-appellants attempted to demolish the said construc tions and during the pendency of the suit took forcible possession. The suit was initially filed for injunction. The relief for possession was added on the allegation that during the pendency of the suit possession over some portion was taken unlawfully by the defendant-appellants.
(2.) THE defendants' case was that the property in suit was the Zila of Kavasth Pathshala, Allahabad who was the Zamindar of the village and one Suraj Din was said to have purchased it and the defendant- appellants are trans ferees from Suraj Din. The trial Court decreed the plaintiffs' suit holding that the site and the land hi dispute belonged to Jang Bahadur and that the plaintiffs were entitled to a decree for possession and injunction. The decree of the trial Court was confirmed by the lower ap pellate Court. It has been contended before me in the second appeal that the report feedings before the Commissioner may not go exparte and may not be in vio lation of the rules of natural justice. If therefore, instead of a court the Com missioner informs the parties the notice given by him should be deemed to be sufficient compliance of O. 26, R. 18, Civil P. C. 7. In Maroli Achuthan v. Kunhipa-thumma. (AIR 1968 Ker 28) it was laid down that:- "The presence of parties is Impera tive under Order 26. Rule 18. Hence, there must be a direction by the court of which notice has to be given to the parties or at least the Commissioner should issue notice to the parties calling upon them to appear for investigation. Though there is no direction by the court directing the parties to appear under Order 26. Rule 18, if notice is issued to the parties by the Commis sioner, that will be substantial compli ance with the provisions of Order 26, Rule 18."
(3.) In Totaram lohharam Wani T. Dattu Mangu Wani, (AIR 1943 Bom 143) the Bombay High Court while consider ing the power of the Court to appoint an ex parte commissioner during an in junction proceeding held that the Court had power to appoint a commissioner and authorise him to dig up the orna ments alleged to be in the defendant's land.;