P.N. Mookerjee, J.
1. This Rule was obtained by the petitioner who was defendant No. 3 in the connected suit under Order 21, Rule 63 of the Code of Civil Procedure.
2. One of the issues between the parties was whether there was a partition, as alleged by the plaintiffs opposite parties. For proving this partition, originally an unregistered deed was produced by the plaintiffs, but, that having been found by the court not to be admissible in evidence under the law, the alleged partition could not be proved by the said deed. Thereafter, the plaintiffs applied for issue of a Commission for ascertaining the local features, for proving. In essence, the details of the above partition, which could not be proved, as aforesaid. The present petitioner objected to the issue of such a commission on the ground that the Commissioner's evidence, if any, would be hit by Section 91 of the Indian Evidence Act and would not be admissible for the purpose of proving the said details of the alleged partition. This objection was rejected by the learned trial Judge.
3. In our view, the purpose of the commission would be to prove the details of the alleged partition, for which there was, admittedly, an unregistered deed of partition, which was inadmissible for want of registration. In the circumstances, the commission, for the purpose, for which it was sought to be taken out, would not be permissible under the law.
4. We, accordingly, make this Rule absolute, set aside the order of the learned trial Judge and reject the plaintiffs' prayer for issue of a commission for local inspection, as made by them.
5. There will be no order for costs in this Rule.
S.K. Chakravarti, J.
6. I agree.