JUDGMENT :- This is a defendants" Second Civil Appeal against the judgment and decree of Additional Civil Judge, Allahabad dismissing the appeal and confirming the decree of the trial Court. The suit was filed by the plaintiff-respondents for possession and injunction restraining the defendant-appellants from interfering with their possession over the property in dispute. The plaintiffs' case was that Jang Bahadur was the owner of the house in dispute and after Jang Bahadur's death the plaintiffs who were the daughters of Jang Bahadur came in exclusive possession and continued to remain in exclusive possession. It was further stated that on account of fire that broke out in the village most of the house was damaged and when she started to make constructions the defendant-appellants attempted to demolish the said constructions and during the pendency of the suit took forcible possession. The suit was initially filed for injunction. The relief for possession was added on the allegation that during the pendency of the suit possession over some portion was taken unlawfully by the defendant-appellants.

2. The defendants' case was that the property in suit was the Zila of Kayasth Pathshala, Allahabad who was the Zamindar of the village and one Suraj Din was said to have purchased it and the defendant-appellants are transferees from Suraj Din. The trial Court decreed the plaintiffs' suit holding that the site and the land in dispute belonged to Jang Bahadur and that the plaintiffs were entitled to a decree for possession and injunction. The decree of the trial Court was confirmed by the lower appellate Court.

3. It has been contended before me in the second appeal that the report of the Commissioner issued ex parte was not admissible and that the finding of the fact based on the report, therefore, suffers from an error of law. Apart from the oral evidence a commission was issued at the instance of the plaintiff to take note of the articles of the house and for determining whether the house was in occupation of the plaintiff or the defendant. According to the plaintiff the house had been in her possession and contained her articles. An ex parte commission was issued. The Commissioner informed the defendant and served the injunction notice and in the presence of the defendant an inventory of the articles and of the persons occupying the house was prepared. This report of the Commissioner has been relied upon as a corroborative evidence in support of the plaintiffs title.

4. The contention of the learned counsel for the appellant is that an ex parte issue of a commission is not contemplated and where a commission has been issued ex parte, the report of the Commissioner will not be admissible under Order 26, Rule 10. Civil P. C. His contention is that in the instant case the report of the Commissioner could not be admissible under Order 26, Rule 18 and if the plaintiff or the Court wanted to rely on the report it was the duty of the plaintiff to prove the report. Reliance has been placed by him on Sm. Mandera Mukherjee v. Sachindra Chandra Mukherjee, (AIR 1962 Pat 211) where it was laid down that:-

"Where the Court has not directed the parties to appear before the commission, any notice by the commissioner himself to the defendant would not validate the appointment of the commissioner. Under Rule 10 (2) the report of a commissioner is evidence, and any evidence recorded by a commissioner without notice to the parties to the suit cannot be used as evidence at All. The order of the Court appointing a commissioner, without notice to the defendants is obviously without jurisdiction."

5. On the other hand learned counsel for the respondent has contended that Order 26, Rule 18 only contemplates the issue of a notice directing the opposite party to appear before the commission and the purpose is that the party should be informed about the appointment of the commissioner.

6. Order 26, Rule 18 contemplates a notice after the appointment of a commissi

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