The improper admission or rejection of evidence shall not be a ground for a new trial or reversal of any decision if there is other sufficient evidence to justify the findings.

B.L.Yadav, J.

1. This is defendants Second Appeal filed under Sec. 100 of the Civil Procedure Code (for short "the Code") in a suit filed by the plaintiff-respondents, praying therein that it be declared and decreed that the defendants have got no right to close the windows and ventilators and other openings in the north-eastern wall of the plaintiffs house and the defendants be further restrained from causing diminution in the light and air, to which the plaintiffs are entitled. The plaintiffs have been enjoying the same right for the last more than 12 years. The relief further was for removal of the wall or any other structure made by the defendants adjacent to the wall of the house of the plaintiffs.

2. The plaintiffs-respondents brought this suit with the averment that their grand father has purchased Holding No. 32 in Ward No. 2 in Mohalla Chowk Road under a registered deed of sale dated 19.5.1921 executed by Ram Charan Lal alias Bachu Babu who was the common ancestor of the defendants in favour of Godulal Jain, grand-father of the plaintiffs, who have raised three storeyed building. They have opened windows at the height of 10 ft. This was consistent with the convenant in the sale-deed itself, but the defendants-appellants are obstructing the passage of light and air by raising constructions, hence necessity for the present suit arose.

3. The case set up by the defendant appellants was a total denial of the plaintiffs case. It was averred that the plaintiffs-respondents have no right to open windows and ventilators in the northern side and they have not complied with the conditions of the sale as contained in the sale deed of 1921. The convenants in any case created in the sale-deed were in the nature of a licence and the same did not create any right in favour of the plaintiffs. The wall has correctly been raised by them. The plaintiffs are entitled to no relief.

4. The trial court after considering the documentary and oral evidence, decreed the suit by its judgment and decree dated 5.5.1987. The First Appeal preferred against that decree met the same fate. Against the aforesaid judgment and decree, the present Second Appeal has been filed by the defendants.

5. Mr. Uma Shankar Prasad, learned Counsel for the appellant urged that the report of the Pleader Commissioner (Ext. 1) prepared under Order 39 Rule 7 of the Code was inadmissible in evidence and the courts below erred in relying upon the same. Only the report of a Pleader Commissioner appointed under Order 26 Rule 4 or 9 of the Code could be admissible as it is prepared in presence of both the parties. The findings of the courts below are perverse and are based on inadmissible evidence (Ext. 1).

6. The learned Counsel for the respondents, Shree R.B. Mahto on the other hand, urged that the report of the Pleader Commissioner appointed under Order 39 Rule 7 of the Code, was also admissible inasmuch as it was prepared during the pendency of an application of temporary injunction. It was, however, open to the defendants-appellants to get a fresh Pleader Commissioner appointed in pursuance of Order 26 Rule 4 or 9 of the Code. In view of Sec. 167 of the Evidence Act even if some inadmissible evidence was admitted, that would not be a ground for reversal of the judgment and decree, provided there was other evidence on record which could justify the findings. There is no substantial question of law involved. The Second Appeal is devoid of merits.

7. Having scrutinised the submissions of the learned Counsel for the parties, the points for consideration are whether the report of the Pleader Commissioner appointed under Order 39 Rule 7 of the Code could be looked into, particularly when he was not appointed under Order 26 Rule 4 or 9 of the Code and as to what is the effect of Sec. 167 of the Evidence Act, 1872 .

8. As regards the first point, suffice it to say that Order 39 Rule 7(1)(a) of the Code empowers the Court to make an order for detention, preservation and in