The court has the power to vary the Commissioner's report under Rule 14(2) of Order 26 of the Code of Civil Procedure, 1908.

( 1 ) THIS appeal is directed against a final decree in a suit for partition. Some of the defendants have come up to this Court. In view of the Order which we are passing it is not necessary for us to deal with all the questions which have been raised in this Court.

( 2 ) THE shares of the parties have been determined by the preliminary decree. There are four items of property: (1) 13, Nazir Lane, (2) 8, Rangalal Street, (3) 33-1 and 33-2 Nazir Lane, and (4) 4, Gopal Doctor Road, all being in Kidderpur, Calcutta. A Commissioner for partition was appointed under R. 13 of Order 26 of the Code of Civil Procedure. Questions were raised by the parties both as regards valuation and as regards allotment. Various sittings were arranged by the Commissioner. Experts were examined on behalf- of the two contending parties. The Commissioner fixed a lump sum value for 4, Gopal Doctor Road and gave detailed valuation about the other items of property.

( 3 ) IN the final report, as submitted by the Commissioner, it is stated that both the parties examined experts, and"after the close of expert evidence the parties left the matter of valuation to me. In compliance with the wishes of the parties I have valued all the properties and declared them before the parties or their lawyers on 9-1-1951. The valuation settled by me is given below. . . . . . "on behalf of the plaintiff-respondents, it is contended that the Commissioner was appointed an arbitrator by the parties for fixing the valuation. The parties are, therefore, not entitled to question the decision as given by the Commissioner. We may state that the Commissioner in his report has not referred either to the opinion of the experts or to any reasons in support of the valuation, as fixed by him, either generally or in particular. We do not think that the Commissioner was appointed as an arbitrator by the parties and that they are bound by the decision given by him. When a Commissioner is appointed under Rule 13 of Order 26, Civil P. C. , he is to consider the claims made by the contesting parties and such evidence as is produced before him. He has, therefore, to come to his decision for being placed before the Judge. In the present case, the parties could not come to an agreement, and therefore, the matter was to be left for the decision of the Commissioner. That is all that was done, and nothing more than that. We do not think that it would have been proper for the Commissioner also to act formally as an arbitrator in a matter of this description.

( 4 ) BEFORE the learned Subordinate Judge, objections were filed to the final report as submitted by the Commissioner. The objections filed by the plaintiffs were not and are not pressed by them now. The defendants, however, press their objections. Attempts were made by them to cite witnesses before the learned Subordinate Judge. They were not allowed to adduce any oral evidence. The learned Subordinate Judge held that after the parties had sufficient opportunity to adduce evidence before the Commissioner, it would be waste of time to allow them to examine witnesses afresh before the Court, and he proceeded to hear the arguments in support of the objections and gave his final decision accepting the report as made by the Commissioner.

( 5 ) THE general view expressed by the learned Subordinate Judge cannot be supported. Under Rule 14 of Order 26, Civil P. C. , which, is in the following terms:"14. (1) The Commissioner shall, after such inquiry as may be necessary divide the property into as many shares as may be directed by the order under which the commission was issued and shall allot such shares to the parties, and may, if authorised thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares. (2) The Commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign sepa