JUGAL TIWARY Vs. JAGARNATH TIWARY

JUDGEMENT

(1.) This civil revision by the defendants is directed against order of the 2nd Munsif, Siwan dated March 13,1997 in Title Suit (Final Decree) No 56 of 1962 setting aside the report of the Advocate Commissioner in the matter of ascertainment of mesne profits, and directing appointment of a new Advocate Commissioner

(2.) The court below has held that the impugned report of the Commissioner is not in conformity with the provision of Section 2(12) of the Code of Civil Procedure, the Commissioner was required to ascertain profits which could be received from the lands and not the profits actually received. The court has further held that the Commissioner adopted double standard in appreciating the evidence of the plaintiffs and the defendants, he did not prepare any memo of inspection nor has mentioned in his report the particulars or actual year-wise expenses. In these premises the court below has held that the report was incomplete and defective.

(3.) Mr. Shashi Shekher Dwivedi, learned Counsel for the petitioners submitted that the court ought to have considered the matter on merit itself and passed final orders. He stated that the report contains the necessary facts and figures which could enable the court to come to final conclusions. He submitted that the Commissioner acts on behalf of the court In absence of any allegation as to incorrect recording of evidence, it is not proper for the court to reject the report According to the counsel, the report of the Commissioner is a piece of evidence, setting aside the same amounts to wiping out the evidence, which is not permissible