ASHUTOSH Vs. R C DEY

JUDGEMENT

(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 :