1. The plaintiffs who have been unsuccessful in both the Courts below in a suit which they had instituted for recovery of possession from the defendants on the ground that the latter had abandoned a raiyati holding which they held under the plaintiffs have preferred this appeal. So far as the findings of the two Courts below are concerned they are very clear and specific and if there was no error of procedure or irregularity in the proceedings the findings could not possibly have been interfered with in second appeal. Unfortunately, however owing to an erroneops procedure that was adopted the plaintiffs appear to have been put to a position of very great difficulty and that has occasioned an amount of prejudice to them which cannot possibly be overlooked. A question arose as to whether certain huts standing on the land had been recently constructed or were in existence from long time before. For the purpose of having this matter inquired into, the Munsif issued a commission for local investigation. The writ that was issued was in the form prescribed for a commission to examine absent witnesses which is issued under Order 26, Rr. 4 and 18, Civil P.C. This form was altered to suit a commission for holding a local inspection. The heading was altered in that way and the body of the writ was also to a certain extent altered it being stated that the Commissioner was required to hold a local inspection of the disputed lands and that the inspection would be held in the presence of all the parties or their agents in attendance. But the portion which is to be found in a writ for examination of witnesses, namely, that the parties or their agents would be at liberty to question the witnesses on the points specified etc., was not struck out. On this commission the Commissioner proceeded to the spot, held a local inspection and examined certain witnesses who were produced before him on behalf of both the parties, and then made a report. At the hearing before the Munsif objection apparently appears to have been taken to the form in which the commission was issued as also to the reception of the report and the deposition which he had recorded as evidence in the case. This objection was given effect to by the Munsif and he said in his judgment:
A Pleader-Commissioner was appointed on the prayer of the plaintiffs to inspect the huts but his report cannot be taken in evidence as it was not proved by examining the Commissioner. After the closing of the case and of defendants', plaintiffs' pleader while arguing his case filed a petition to examine the Pleader-Commissioner in order to prove his report, but I disallowed the prayer as it would have been seriously prejudicial to the defence if the Commissioner would be allowed to be examined at that late stage.
2. This matter formed one of the grounds of complaint in the memorandum of appeal, which was preferred to the Subordinate Judge and appears to have been pressed before him on behalf of the appellants. The Subordinate Judge disposed of the question in this way. He says:
From the records of the suit, it seems that' this Commissioner must have been appointed under Order 39, Rule 7, Civil P.C., and not under Order 26, Rule 9, Civil P.C., for the mode of appointment under the latter order was not followed. Hence the report of the Commissioner, unless proved regularly, could not be evidence in the case and as plaintiffs did not take any steps except at a stage too late, the learned lower Court did not receive the report in evidence and did not allow the plaintiffs to get it proved. In my opinion, also the learned Munsif followed the right course.
3. Now having regard to the purpose for which the commission was is sued it is quite clear that the matter should have been dealt with not under any of the provisions of Order 26 at all, but under Order 39, Rule 7, the proper procedure being for the party to apply to the Court to authorize some particular person to go upon the land or enter the structure standing on it for the purpose of making an observation with regard to the condition of things existing there and to have come back to the Court to give his evidence as regards the result of such observation. That no doubt was the proper provision of the law to be resorted to for meeting the requirements of a case of this nature. That rule evidently was lost sight of by the learned Munsiff and what he did was to issue a commission which on the face of it purported to be issued under Order 26, Rule 4 which rule however has got no application whatsoever to the case being a rule which enables the Court to issue a commission for the examination of absent witnesses upon certain circumstances but which may perhaps be and is indeed sought to be justified upon the provisions contained in Order 26 Rule 9 of the Code.
4. The last mentioned rule however was not meant to cover a case of this description. It only enables the Court to depute a Commissioner to hold a local investigation for the purpose of elucidating a matter in dispute or ascertaining the market value of the property or ascertaining the amount of mesne profits or damages or annual net profits etc. The only part of this rule within which a matter of this description may be reasonably attempted to be brought is the part which says that a commission may be issued for the purpose of elucidating a matter in dispute. This commission however was not for the purpose of elucidating any matter about which the parties were at variance because there was nothing which required any explanation. What was required was a decision on the question as to whether what was asserted on be-half of the other side namely that the structures standing on the land were recent and not old structures was a true assertion or not a matter about which the Court and the Court alone had jurisdiction to inquire into and decide upon. The whole procedure that was adopted in this case was therefore wrong. Besides all these, there was a defect in the writ which necessarily had the effect of misleading the parties. The writ by the terms contained in its body provided for the examination and cross-examination of witnesses, it never having been the intention of the Court at all to issue a commission for that purpose. It is not suggested that such witnesses as were examined by the Commissioner, in fact, in execution of this writ fulfilled the requirements mentioned in Order 26, Rule 4. The whole thing therefore was misconceived and as a result of this irregularity and defect witnesses who were examined before the Commissioner were not examined before the Court and their deposition was lost. The report of the Commissioner also was of no avail to either side. I am clearly of opinion that the Courts below should not have left the matter in the state in which they have done in their judgment.
5. The proper course, in my judgment, to adopt in this case would be to allow the appeal, set aside the decision of the Subordinate Judge complained of and to send the case back to his Court so that he may now give the appellants an opportunity to examine the Commissioner and the four witnesses who were examined before the Commissioner or such of them as he may desire to do and after they have been so examined the respondents should be given liberty to examine such other witnesses as they may desire to do in rebuttal of the evidence adduced on behalf of the plaintiff. That being done the Court below will proceed a to give the parties an opportunity of giving their respective cases and then dispose of the appeal before him in accordance with law. There will be no order as to costs in this appeal.