- (1.) THIS is an appeal by the plaintiff Mst. Kaila Devi against the appellate judgment and decree of the learned District Judge, Bharatpur. She filed a suit for ejectment and rent for one month against the defendants. It was alleged that the defendants had made certain constructions which had materially altered the premises and were likely to diminish the value thereof. The defendants denied having made any such constructions and pleaded that whatever alterations they had made were for the purposes of improving and beautifying the premises. The learned Civil Judge, Bharatpur, who tried the case came to the conclusion that the defendants had made certain constructions which had materially altered the premises and were likely to diminish the value thereof. It was also held that the defendants were trying to convert the premises into a temple which was inconsistent with the purpose with which the defendants were entered as tenants. On these findings the suit for ejectment as well as for rent, was decreed. The defendants went in appeal. During the pendency of it, the lower appellate court with the consent of both the parties appointed Shri Girraj Singh, Commissioner, who inspected the locality and filed a report dated the 27th of February, 1952. Parties were given three day's time to file objections if any against the report and the plaintiff appellant filed a long list of objections on the 29th of February. 1952. The learned District Judge on a consideration of the report of the Commissioner, allowed the appeal and set aside the decree so far as ejectment was concerned. Against this judgment and decree, the plaintiff has come in appeal to this Court.
(2.) I have heard Mr. G. C. Kasliwal on behalf of appellant. No body appears on behalf of the respondents It has been argued by Mr. Kasliwal that the learned District Judge did not at all consider the objections although a number of objections were filed against the Commissioner's report. Simply acting on the report of the Commissioner and without going into other evidence which had been produced in the case, the lower appellate court reversed the decree of the first court, which was not proper. I have considered the argument of Mr. G. C. Kasliwal. On a reading of the judgment of the lower appellate court, it is quite clear that it is entirely based upon the report of the Commissioner. Although a number of objections were filed against the said report, yet none of them has been dealt with either in the judgment or separately. The judgment also shows that the learned District Judge did not at all notice other evidence which was produced in the case. I do not think that under the circumstances of the case, the judgment of the learned District Judge can be upheld. The report of the Commissioner, is an important piece of evidence in the case, but when objections are filed against it, the court should also consider the objections and should also take into consideration other evidence on the record. In the case of Bastee Sahoo vs. Jeo Narain Singh (l), the lower appellate court took an Ameen's report and map as its sole guide and made them the sole basis and foundation of its decision to the total disregard of the other evidence on the record. It was held that the lower appellate court erred in law in doing so. To my mind the learned District Judge ought to have carefully considered objections filed against the report as well as other evidence produced in the case and should not have proceeded to decide the case solely on the basis of the Commissioner's report. The appeal is allowed ex-parte, the decree of the lower appellate court is set aside and the case is remanded to it to decide the appeal in accordance with law and in the light of the observations made above. The costs of this appeal shall abide the result of the appeal in the lower appellate court after this remand. .;