Disregard of the Commissioner's report, made after local investigation, under the provisions of Order 26, Rules 9 and 10 of the Code of Civil Procedure, does not constitute an error or defect in the procedure within the meaning of Clause (c) of Section 100 of the Code of Civil Procedure, 1908.

( 1 ) A tamarind tree, the small plot of land on which it stands and the alleged mis-appropriation of 15 seers of tamarind led to the institution of the suit for declaration of title, injunction and for damages, total value being laid at only Rs. 20/- put of which this Second Appeal arises. The plaintiffs being unsuccessful in both the Courts below, fought the battle royal for two days in this Court through their learned Advocate Mr. A. D. Mukherjee, defended by Mr. P. N. Mitra, the learned Advocate for the respondent.

( 2 ) THE plaintiffs claim that the land and the tree appertain to their Bastu plot (No. 6930 ). The defendants on the other hand, claim that they appertain to their tank and its banks (Plot No. 6929), being on the west of the plaintiffs' plot, having no gap between the two. Plaintiffs rest their title on two Kobalas dated May 16 and June 4, both of the year 1891. Defendants rest their title on an unregistered Patta of 1282 B. S. (1875) followed by a Kobala of the year 1929. Besides the said and other documentary evidence, oral evidence was adduced by both the parties.

( 3 ) AT the plaintiffs' instance, a Pleader-Commissioner was appointed for local investigation. He submitted a report, which being found defective, was rejected by the Trial Court. To the credit of the Commissioner he lost even the original Case Map, A second Commissioner was appointed. To the second report again, (as criticism is usually the Commissioner's lot) both sides filed objections, The Court of appeal below without relying on the Commissioner's report found that the plaintiffs, by their Kobalas have not purchased the disputed land on which the tree stands and further found that the tree referred to in the defendant's Patta and the Kobala was the tree in dispute and the same was within the defendants' tank and its banks. The conclusion arrived at by the Commissioner that the tree is within the ambit of the land demised by the Patta is accepted by the learned Subordinate Judge in appeal, because the same appeared to him to be correct, in view of other evidences on the record.

( 4 ) BEFORE the Court of appeal below a grievance was made on behalf of the plaintiffs-appellants that the Appellate Court ought to have examined the Commissioner before rejecting his report and that a remand was justified. The learned Subordinate Judge, however, adhered to the view that other evidences on the record are sufficient for the disposal of the case and the prayer of remand? was not acceded to. The terms of the judgment delivered by him in my view are certainly calculate ed to suggest that he had applied his mind to the other evidences in the case and had come to an independent conclusion. The result was that the disputed land and the tree were thrown into the defendants' plot. The, learned Subordinate Judge was possibly disposed to think that any further working on the case was likely to be nothing but infructuous expenditure of time and a protraction-of the dispute. But in spite of above, it now appears that it has not tended (in this case at least) to stop the litigation. More so, when the learned Advocate in support of the appeal, attempted to call up the case as a regular appeal and when I was taken to the other evidences on the record.

( 5 ) MR. Mukherjee maintained firstly that the Subordinate Judge's disregard of the Report of the Commissioner and the failure to order for a fresh enquiry constituted a substantial error or defect in procedure within the meaning of Clause (c) of Section 100 of the Code of Civil Procedure. Mr. Mitra, the learned Advocate of the respondent on the other hand, called in his aid and relied on certain decisions and specially of their Lordships of the Judicial Committee of the Privy Council as corrective of an undue scepticism in such matters.

( 6 ) IN my judgment, on construing Order 26, Rules 9 and 10 read with Section 100 (c) of the Code of Civil Procedure, 1908, there is no warrant for absolute prop