The Commissioner's report forms part of the record under Order 26, Rule 10(2) of the Civil Procedure Code, 1908, even if it is not marked as a document and the Commissioner is not examined. The court can act upon the Commissioner's report even if the Commissioner is not examined.

K. MADHAVA REDDY, J.

( 1 ) THE plaintiff in O. S. No. 212 of 1967 on the file of the District Munsifs Court, Rajam is the appellant herein. He has filed the suit for a perpetual injunction to restrain the defendant from interfering with his possession over the plaint schedule site the defendant denies that fact and claims that he was in possession. The trial Court on examination of the entire evidence on record including the evidence of PWs 1 to 3 and the report of the Commissioner appointed by it to report about the local features of the suit site, held about the local features of the suit site, held that the plaintiff was not in possession of the properties and accordingly dismissed the plaintiffs suit. With that finding the appellate Court also concurred. In coming to the conclusion it observed that P. W. s 1 to 3 support the case of the plaintiff and D. Ws 1 to 5 were speaking in favour of the defendant in regard to the use of the suit site and then proceeded to hold that the Commissioners report is the deciding factor in the present case and on a consideration of the report, held that the plaintiff is not in possession of the suit site and confirmed the dismissal of the suit.

( 2 ) IT may be mentioned at this stage that during the pendency of the appeal in the lower appellate Court, the appellant filled LA , 54/1970 for allowing him to amend the plaint so as to include the prayer for the relief of declaration of title and recovery of possession. After the Court came to the conclusion, that the plaintiff was not in possession of the plaint schedule site on the date of the institution of the suit, that petition was dismissed.

( 3 ) IN this second appeal, it is argued by Mr. Ayyapu Reddy learned counsel for the appellant, that the Court below was in error in rejecting the petition for amendment of the plaint and forcing the parties to file another suit for the decision on their rival claims to the title of the plaint schedule site. He further argues that the lower appellate Court erred in taking the Commissioners report into consideration even though the Commissioner was not examined, and the report itself was not marked as evidence and further that the lower appellate Court failed to consider in particular the evidence of P. Ws. 1 to 3 who speak to the possession of the plaintiff.

( 4 ) FROM the above narration of facts, it is clear that the suit was merely for the relief or perpetual injunction and for granting or refusing that relief, the only point that arose for consideration was as to whether the plaintiff was in possession of the property. The issue that was framed was whether the plaintiff is entitled to the injunction as prayed for. Even the Appellate Court has framed the following points viz. , (1) Whether the plaintiff was in possession and enjoyment of the suit site MNOP on the date of the suit? (2) Whether there was threat of unlawful occupation of the suit site by the defendant ? The learned District Judge, on those points, held against the respondent. It was not necessary in a suit for perpetual injunction to go into the question of title. Merely because some documents relating to the title of the parties were also filed, it cannot be said that the parties really agitated the question of the title in that suit. When the question of title is not agitated, it was not necessary for the Courts below to go into that question. A petition for amendment was not filled in the trial Court and it was within the discretion of the lower appellate Court either to allow the amendment or not. That apart, the plaintiff had not stated definitely whether he was in possession of the property or he was dispossessed on the date of the suit. He does not admit that after the institution of the suit he was dispossessed. In these circumstances, it cannot be said that the lower appellate Court acted arbitrarily or failed to exercise the discretion judicially in rejecting L. A. 54/70 for amendment of the plaint.

( 5 ) A reading of the jud

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