1. The plaintiff in O.S.No. 212 of 1967 on the file of the District Munsif's Court, Rajam is the appellant herein. He has filed the suit for a perpetual injunction to restrain the defendant from interfering with his possession over the plaint schedule site the defendant denies that fact and claims that he was in possession. The trial Court on examination of the entire evidence on record including the evidence of P.Ws 1 to 3 and the report of the Commissioner appointed by it to report about the local features of the suit site, held about the local features of the suit site, held that the plaintiff was not in possession of the properties and accordingly dismissed the plaintiff's suit. With that finding the appellate Court also concurred. In coming to the conclusion it observed that P.W.'s 1 to 3 support the case of the plaintiff and D.W's 1 to 5 were speaking in favour of the defendant in regard to the use of the suit site and then proceeded to hold that the Commissioner's report is the deciding factor in the present case and on a consideration of the report, held that the plaintiff is not in possession of the suit site and confirmed the dismissal of the suit.
2. It may be mentioned at this stage that during the pendency of the appeal in the lower appellate Court, the appellant filled LA , 54/1970 for allowing him to amend the plaint so as to include the prayer for the relief of declaration of title and recovery of possession. After the Court came to the conclusion, that the plaintiff was not in possession of the plaint schedule site on the date of the institution of the suit, that petition was dismissed.
3. In this second appeal, it is argued by Mr. Ayyapu Reddy learned counsel for the appellant, that the Court below was in error in rejecting the petition for amendment of the plaint and forcing the parties to file another suit for the decision on their rival claims to the title of the plaint schedule site. He further argues that the lower appellate Court erred in taking the Commissioners' report into consideration even though the Commissioner was not examined, and the report itself was not marked as evidence and further that the lower appellate Court failed to consider in particular the evidence of P.Ws. 1 to 3 who speak to the possession of the plaintiff.
4. From the above narration of facts, it is clear that the suit was merely for the relief or perpetual injunction and for granting or refusing that relief, the only point that arose for consideration was as to whether the plaintiff was in possession of the property. The issue that was framed was whether the plaintiff is entitled to the injunction as prayed for. Even the Appellate Court has framed the following points viz.,
(1) Whether the plaintiff was in possession and enjoyment of the suit site MNOP on the date of the suit?
(2) Whether there was threat of unlawful occupation of the suit site by the defendant
The learned District Judge, on those points, held against the respondent. It was not necessary in a suit for perpetual injunction to go into the question of title. Merely because some documents relating to the title of the parties were also filed, it cannot be said that the parties really agitated the question of the title in that suit. When the question of title is not agitated, it was not necessary for the Courts below to go into that question. A petition for amendment was not filled in the trial Court and it was within the discretion of the lower appellate Court either to allow the amendment or not. That apart, the plaintiff had not stated definitely whether he was in possession of the property or he was dispossessed on the date of the suit. He does not admit that after the institution of the suit he was dispossessed. In these circumstances, it cannot be said that the lower appellate Court acted arbitrarily or failed to exercise the discretion judicially in rejecting L.A. 54/70 for amendment of the plaint.
5. A reading of the judgment of the lower appellate Court discloses that the lower Appellate Court which has confirmed the finding of the trial Court as regards the possession of the plaintiff over the plaint schedule site did refer to the evidence of the plaintiff's witnesses 1 and 3 though have spoken in support of the plaintiff's possession, and likewise the witness examined on behalf of the defendant's possession. In observing that the Commissioner's report is decisive of the matter, evidently the Court did not accept the oral evidence of these witnesses on their face value except where it was supported by the local features of the plaint schedule site. The lower appellate Court has discussed the Commissioner's report at length and found that what is deposed by the plaintiff's witnesses cannot be accepted.
6. The learned counsel for the appellant however, objects to the Commissioner's report being accepted and acted upon without its being marked and without the Commissioner being examined. But when the Court appoints a Commissioners under O. 26, R. 9, C.P.C., for making a local inspection and to submit a report, the Commissioner is given the discretion to make a local inspection and record evidence if necessary and submit a report together with such evidence as he thinks fit. Under sub rule (2) of Rule 10 of Order 26, C.P.C., the report of the Commissioner and the evidence taken by him form part of the record. When the Rule lays down that it forms part of the record irrespective of whether it is marked or not, the Court is bound to take that evidence into consideration. The failure to mark it as a document on behalf of the parties does not exclude it from the record. Sub-rule (2), however, lays down that either the Court or any of the parties may examine the Commissioner but if the Commissioner is not examined, the report submitted by him does not cease to form that unless the Commissioner is examined and through him his report is marked as an exhibit, the report of the Commissioner cannot be acted upon. That being so, the lower Appellate Court was right in considering the Commissioner's report and in accepting the defendant's evidence and rejecting that of the Commissioner lower Appellate Court was right in considering the Commissioners' report and injecting the defendant's evidence and rejecting that of the plaintiff's witnesses in the light of that. The finding whether the schedule site or not is a finding of fact which is supported by the evidence on record and is binding on this Court in Second Appeal.
7. The failure to allow the amendment, does not in any way prejudice the appellant. He can still, notwithstanding the dismissal of the suit for perpetual injunction, if he has title to the property, agitate the same in another suit.
In this view of the matter, this second appeal fails and is accordingly dismissed with costs No leave.
8. Appeal dismissed.