JAGE AND JUGTI Vs. AMAR SINGH

JUDGEMENT

(1.) The plaintiffs filed this suit for a permanent injunction restraining the defendants from obstructing the use of the watercourse in dispute and making obstruction in the reconstruction of the demolished portion of the said watercourse. The trial Court after recording the evidence of the parties decreed the suit. On appeal, the learned Senior Sub-Judge, vide judgment dated December 2, 1974, remanded the case for a fresh decision on the grounds that the report of the Local Commissioner, Exhibit P-2, and the copy of Shart Wajib-Ul-Arz, Exhibit P-5 were not admissible in evidence and that the trial Court ought to have decided issue Nos. 5 and 6 on merits. Aggrieved by that order the plaintiffs have come up in this second appeal.

(2.) None of the two grounds given by the learned Senior Subordinate Judge is sustainable in law. So far as the second ground is concerned, it need only be stated that none of the two issue Nos. 5 and 6 were pressed before the trial Court and the same were, therefore, answered in the negative. The learned Senior Subordinate Judge, however, erroneously thought that the trial Court should have decided these issues on merit as he had not recorded the statement of the learned counsel that they did not press these issues. The learned counsel for the respondents also did not try to support this view during the course of the arguments.

(3.) As regards the copy of the report of the Local Commissioner, the objection raised was that the report had been made in an earlier suit filed between the parties and as no opportunity was afforded to file objections against that report, the same would not be admissible in evidence. Reliance for this proposition was placed on a decision of this Court in S.A.O. 52 of 1962 (Waryam Singh and another v. Lachman Das and others) decided on February 4, 1966, wherein Falshaw C.J. held that admittedly Order 26, Rule 10, Civil Procedure Code, which deals with the appointment of Local Commissioner, does not specifically make any provision for objections by the parties to his report but it is certainly a well-established practice to invite and dispose of such objections. These observations were made with respect to the report of the Local Commissioner in the very suit in which it was made and was per se evidence by virtue of the provisions of Order 26, Rule 10. Obviously, such observations have no relevancy so far as the present case is concerned because here the report is to be admitted under the provisions of Evidence Act and is not per se evidence.