D.M. Chandrashekhar, J.
1. This petition is for revision of the order of the Civil Judge at Udipi, rejecting an application for appointment of a Commissioner under Order 26, Rule 9, Civil P. C.
2. The suit is for partition and possession of the plaintiffs' share in certain agricultural lands and buildings. The plaintiffs who claim to be the reversioners, have contended that the alienations of the suit properties by the widow of the last male owner, are not binding on them.
3. Defendants 11, 12, 19, 22, 23 and 25 who are the alienees of the suit properties, have claimed inter alia, that they have effected improvements in the suit properties by spending several thousands of rupees and that even if the alienations in their favour are held to be not binding on the plaintiffs, they (those defendants) are entitled to some equalities in respect of the said improvements.
4. The said defendants made an application I. A. III, praying for the appointment of a Commissioner to visit the said properties and to estimate the value of the improvements made by them. According to them, such appointment of a Commissioner would save a good deal of time and expenditure in proving those improvements and the value thereof.
5. That application was resisted by the plaintiffs mainly on the ground that the alienees are not entitled to the value of the alleged improvements.
6. The learned Civil Judge has said in his order that the Court can itself conduct an investigation in order to ascertain the improvements alleged to have been effected by the said defendants, that a local investigation by the Commissioner under Order 26, Rule 9, Civil P. C., presupposes the existence of independent evidence on record, that the issue whether the defendants have effected any improvements has to be tried by the Court on the evidence adduced by the parties, that the decision on this material issue can never be left to the Commissioner and that the Court cannot delegate any of its judicial functions to the Commissioner. In that view, the learned Civil Judge felt that it was improper to issue any commission to assess the value of the alleged improvements.
7. Mr. B. P. Holla, learned counsel for the petitioners, contended that the learned Civil Judge has entirely misconstrued the scope and object of the local investigation by the Commissioner appointed under O. 26, Rule 9, Civil P. C. and that on account or such erroneous view, he failed to exercise the jurisdiction vested in him under Order 26, Rule 9, Civil Procedure Code. Mr. Holla submitted that the purpose of appointing the Commissioner is to make a local investigation of the alleged improvements to the suit properties and the value thereof, so that the report of the Commissioner may be useful to the Court in deciding as to the existence of such improvements and the value thereof and that there is no question of delegation of any power of the Court to decide any matter in dispute in the suit.
8. Mr. Holla invited my attention to the following observations of the Supreme Court in Munnalal v. Rajkumar, : AIR1962SC1493 :
'But it is manifest that the trial Judge only directed the Commissioner to submit his proposals for partition of the pro-petty, and for that purpose authorised him to ascertain the property which was available for partition and to ascertain the liability of the joint family. By so authorising the Commissioner, the trial Court did not abdicate its functions to the Commissioner: the Commissioner was merely called upon to make proposals for partition, on which the parties would be heard, and the Court would adjudicate upon such proposals in the light of the decree and the contentions of the parties. The proposals of the Commissioner cannot from their very nature be binding upon the parties nor the reasons in support thereof.'
9. Mr. Holla submitted that the improvements claimed by the defendants were in the form of buildings and structures on the suit lands and trees and plants planted therein and that the Commissioner can, after local investigation, report whether he noticed such improvements and if so, the particulars thereof and the probable value thereof, and that such report would minimise the volume of evidence that the parties may have to adduce on those matters.
10. On the other hand, Mr. V. Taraka-ram, learned Counsel for the respondents, contended that the questions whether any buildings or structures have been constructed by the defendants and whether any trees and plants have been planted by them, are not matters for local investigation but have to be established by the defendants by adducing evidence and hence it would not be appropriate to appoint a Commissioner.
11. I think Mr. Holla is right in contending that the learned Civil Judge has misconstrued the object of appointment of a Commissioner and the scope of his functions. By appointing a Commissioner who makes a local investigation and submit his report to the Court, there is neither abdication nor delegation of the powers of functions of the Court to decide the issue as to the alleged improvements and the value thereof. The local investigation made by the Commissioner, is merely to assist the Court by placing a report of such local investigation. Such report of the Commissioner is not, in any way, binding on the Court whose power to arrive at its own conclusion, even at variance with such report, is in no way impeded by such report. The learned Civil Judge erred in thinking that by appointing the Commissioner in the present case, there would be any impediment to the Court arriving at its own conclusion as to the alleged improvements and the value thereof.
12. Mr. Tarakaram is right in contending that the question whether the said defendants have effected any improvements or whether the suit properties were in the same condition as now, when they were alienated in favour of those defendants, is a question that can be decided only by taking evidence by the Court and that it is not a matter to be ascertained by the Commissioner. But the local investigation by the Commissioner will be useful in ascertaining the existing condition of the suit properties, the particulars of the buildings, structures, trees and plants found on the suit lards, though the question whether all those buildings, structures, trees and plants were there even prior to the alienations or were added thereafter, is clearly a question which has to be decided by the Court after taking evidence. By such local investigation, the Commissioner can also state the value of buildings, structures, trees and plants alleged to have been constructed or planted by the said defendants. The learned Civil Judge was clearly in error in holding that it is not proper to issue a Commission for local investigation.
13. However, Mr. Tarakaram urged that even if the view taken by the learned Civil Judge as to whether he should exercise his discretion to appoint a Commissioner, is erroneous, there is no error of jurisdiction, illegality or material irregularity which would justify interference in revision, with the exercise of his discretion.
14. As held by the Privy Council in Joychandlal Babu v. Kamalaksha Chaudhury , if an erroneous decision of a subordinate Court results in that Court failing to exercise a jurisdiction vested in it by law, a case for revision arises. On account of the erroneous view taken by the learned Civil Judge that the appointment of Commissioner for local investigation as to the particulars of the alleged improvements and the value thereof, would amount to abdication or delegation of the powers of the Court, the learned Civil Judge declined to exercise his jurisdiction to appoint a Commissioner. Such failure to exercise jurisdiction justifies interference in revision.
15. However, in order to define the scope of the local investigation by the Commissioner, I think the procedure indicated by the Madras High Court in Ambi v. Kunhikayamma : AIR1929Mad661 can conveniently be adopted in the present case also while issuing the Commission. That is, the said defendants shall be directed to set out clearly, in detail, the improvements claimed, the reasons why they are claimed and the value claimed. The plaintiffs shall then be called upon to make their rejoinder on those points. The Civil Judge shall thereafter judicially consider both the statements and then decide on what points, if any, he regards commission as necessary and will then issue a Commission with detailed instructions accordingly.
16. In the result, this revision petition is allowed, the order of the learned Civil Judge on I. A. III is reversed, and he is directed to issue a Commission following the procedure indicated above.
17. In this petition, parties are directed to bear their own costs.
18. Revision allowed.