The court's authority to consider and confirm a Commissioner's report before the hearing of a suit on merits, and the subsequent ability of parties to present additional evidence or examine the Commissioner.

Das, J.

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 commissioners 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 Sub-rules (2) and (3) are in these terms :

"(2) The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record: but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to. his report, or as to the manner in which he has made the investigation. (3) Where the Court is for any reason dissatisfied with the proceedings of the Com- missioner, it may direct such further inquiry to be made as it shall think fit."

4. It is pointed out by learned counsel for the petitioners that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record; and his argument is that except for the limited purpose of considering whether a further enquiry should or should not be made under Sub-rule (3) it was not open to the learned Subordinate Judge to assess the value of the report of the commissioner in the absence of other evidence which might be given by a party to the suit to challenge the correctness of the commissioners report. This contention of learned counsel for the petitioners is supported by a single Judge decision of this Court in Civil Revn. Nos. 450 and 452 of 1947, decided by Eennett J., as he then was, on 28-8-1947. Referring to Sub-rules (2) and (3) of Rule 10 of Order 26, Civil P. C., Bennett J, made the following observations :

"To purport to decide a fact in issue, let alone the main fact in issue, by reference solely to the report of the Commissioner in advance of or irrespective of any other relevant evidence thereon which may be or has been adduced by either party is quite illegal and amounts to an abdication of its proper functions by the Court in favour of the Commissioner. No doubt, when the time comes for the report of the Commissioner to be weighed in the light of all the other evidence on the record, it is entitled to due and proper consideration, but that is a