JUDGMENT :- This appeal is concluded by a finding of fact. The only argument raised in support of the appeal by the learned counsel for the plaintiff appellant was that the court below erroneously rejected from consideration the report of the Commissioner which was relied upon by the court of first instance. The plaintiff had sued for recovery of a sum of Rs. 1,1OO/- as damages for breach of contract committed by the defendant. Timber of twenty eight mango trees including the roots was sold by the defendant to the plaintiff. It was further agreed that the defendant will uproot the trees and make available the timber and roots on payment of agreed price plus the labour charges and the plaintiff would transport the same in truck in specified lots. It was also agreed that in case the specified lots were not ready to be transported at any time when the trucks of the plaintiff came to the spot, then the defendant would be liable for the truck hire also. It was alleged by the plaintiff in his plaint that the defendant only felled down twentyfive trees, kept back the roots of five trees and did not keep the specified quantity of timber ready for transport when the plaintiff's truck reached the spot. On this account the plaintiff claimed Rs. 1,100/- as damages, namely, price of uncut trees, five roots and hire charges for the truck. The plaint was presented in court on 26-11-1962. A lawyer Commissioner was appointed on 28-11-1962 to go to the spot and make a local inspection. On 1-12-1962 the Commissioner filed a report to the effect that twentyfive trees had been cut, roots of five trees had not been taken out and three trees were still standing. The Commissioner also noted in his report that the defendant was present when he went for local inspection. On 9-2-1963 the defendant filed a written statement and also filed an objection to the Commissioner's report. It was alleged by the defendant that he was not present at the spot when the Commissioner went for local inspection. This objection was not supported by any affidavit. The learned Munsif directed that the objection would be considered at the time of final hearing. Witnesses were examined on behalf of the parties. The learned Munsif without deciding the objection and relying implicitly on Commissioner's report as corroborating the plaintiff's version and disbelieving the defendant's evidence, decreed the plaintiff's suit. On appeal by the defendant the learned Judge of the lower appellate court discarded the Commissioner's report on the ground that the contents thereof would not be legal evidence as the objection had remained undecided and the defendant had no opportunity to controvert the report the Commissioner not having been examined. Then relying on the evidence of the defendant allowed the appeal, set aside, the judgment and decree of the trial court and dismissed the plaintiff's suit. The plaintiff has now come up in second appeal.

2. It was submitted by the learned counsel for the plaintiff appellant that the objection to the Commissioner's report not having been supported by an affidavit was of no avail and the Commissioner's report was legal evidence on the basis of which findings ought to have been recorded by the court below. The contention was that the finding of fact recorded by the lower appellate court was vitiated by omitting to take into consideration the evidence furnished by Commissioner's report. Reliance was placed on the case of Shiv Sahai v. Har Narain, AIR 1963 All 413. In that case the learned Single Judge held that where, the commissioner, a member of the court, had stated in his report that he had made the inspection in the presence of the parties, but the defendants alleged in their objection without supporting their allegation by an affidavit, that this statement was not true, the court would be acting improperly in accepting the bare words of an interested litigant against that of a lawyer executing a commission on behalf of the Court and in doing s

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