Das, J.

(1) This application in revision is directed against an order of the learned Additional Subordinate Judge of Dhanbad dated 19-3-195

1. The application first came up for hearing before a single Judge, who referred it to a Division Bench for decision.

(2) The material facts are the following. The petitioners are defendants in the suit. The plaintiff-opposite party brought the suit for a declaration of his title to a certain colliery and for fixing the northern and eastern boundaries of the said colliery. He also asked for mesne profits in respect of coal which the petitioners were alleged to have taken away by encroaching on his colliery. A Commissioner was appointed in the suit at the instance of the plaintiff-opposite party. The commissioner was asked (a) to survey the colliery and fix its northern and eastern boundaries; (b) to ascertain the extent of the encroachment, if any, alleged to have been made by the petitioners; and (c) to ascertain the amount of coal alleged to have taken away by them. The commissioner submitted a report to which the present petitioners filed an objection, mainly on the ground that the commissioner had not correctly fixed the position of a trijunction pillar. By the order complained of, the learned Subordinate Judge considered the objection and held that the commissioners report was fit to be accepted, and said that the report was confirmed. It is against this order of the learned Subordinate Judge that the present rule is directed.

(3) The contention of learned counsel for the petitioners is that by reason of the provisions of Rule 10 of Order 26, Civil P. C., it was not open to the learned Subordinate Judge to consider, and confirm the report of the commissioner at a stage earlier than the hearing of the suit on merits. Learned counsel has referred particularly to Sub-rules (2) and (3) of Rule 10 of Order 2

6. Sub-rules (2) and (3) are in these terms :

"(2) The report of the Commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record: but the Court or, with the permission of the Court, any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, or as to. his report, or as to the manner in which he has made the investigation. (3) Where the Court is for any reason dissatisfied with the proceedings of the Com- missioner, it may direct such further inquiry to be made as it shall think fit."

(4) It is pointed out by learned counsel for the petitioners that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record; and his argument is that except for the limited purpose of considering whether a further enquiry should or should not be made under Sub-rule (3) it was not open to the learned Subordinate Judge to assess the value of the report of the commissioner in the absence of other evidence which might be given by a party to the suit to challenge the correctness of the commissioners report. This contention of learned counsel for the petitioners is supported by a single Judge decision of this Court in Civil Revn. Nos. 450 and 452 of 1947, decided by Eennett J., as he then was, on 28-8-194

7. Referring to Sub-rules (2) and (3) of Rule 10 of Order 26, Civil P. C., Bennett J, made the following observations :

"To purport to decide a fact in issue, let alone the main fact in issue, by reference solely to the report of the Commissioner in advance of or irrespective of any other relevant evidence thereon which may be or has been adduced by either party is quite illegal and amounts to an abdication of its proper functions by the Court in favour of the Commissioner. No doubt, when the time comes for the report of the Commissioner to be weighed in the light of all the other evidence on the record, it is entitled to due and proper consideration, but that is a very different matter from a decision based solely on the report. * * * There is only one proper purpose of an objection to the report of a Commissioner appointed under the provisions of Order 26 Rule 9, C.P.C., and that is the purpose provided for in Sub-rule (3) of Order 26 Rule 10, C.P.C., namely, in order to obtain an order that such further inquiry shall be made as the Court may think fit and upon an objection lodged with that object the order of the Court should be strictly confined to a grant or refusal of such further inquiry with the reasons for such grant, or refusal."

(5) If I may say so with great respect, the scope of any reason for the long standing practice with regard to the consideration of the commissioners report, referred to by Bennett J. in his judgment, has not been correctly appreciated. He seems to have proceeded on the assumption that the order of the Court that certain objections to the report of the commissioner were not tenable, was tantamount to a final decision of a fact in issue or even the main fact in issue in the suit. I do not think that there is any warrant for this assumption in law or fact. When objections are filed to the commissioners report, the objections generally challenge the correctness of the report on one ground or another. Under Sub-rule (3) of Rule 10, it becomes necessary for the Court to consider whether there are any reasons for being dissatisfied with the proceedings of the commissioner and to decide whether a further enquiry should be made or not. In deciding that question, the Court has to consider the correctness or otherwise of the Commissioners report on the materials then available to the Court. An order rejecting the objections or confirming the report of the commissioner, does not mean that the Court has abdicated its functions and has decided a fact in issue solely on the report of the commissioner and in advance of or irrespective of any other relevant evidence bearing on the question. I do not think that the Court is at all precluded from considering the report of the commissioner again in the light of such fresh materials as may be legally brought into the record by the parties to the action. Sub-rule (2) makes it quite clear that the report of the commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record; the Court, or with the permission of the Court, any of the parties to the suit may examine the commissioner personally in open Court touching any of the matters referred to him or mentioned in his report, etc. It is obvious that when the Court rejects certain objections to the commissioners report, it is not precluded from" examining the commissioner at a later stage either suo motu or at the instance of any of the parties to the suit; nor does the Court preclude itself from considering the report of the commissioner in the light of such other evidence as may be given by the parties to the suit. It is not suggested that any bar of res judicata is likely to arise by reason of the order of the Court rejecting certain objections to the commissioners report : therefore, there is no abdication of its proper functions by the Court in favour of the commissioner. The decision of Bennett, J. appears . to me to have proceeded on an assumption which is not warranted by the practice which is followed in such cases or by provisions of Sub-rule (2) or Sub-rule (3) of Rule 10 of Order 26, Civil P. C.

(6) The matter may also be looked at from, the point of view of convenience. If the consideration of the report of the commissioner is deferred till the hearing of the suit, any defect discovered in the report of the commissioner would necessitate an adjournment or postponement of the hearing, and the parties will be put to further expenses of an adjourned or postponed trial, it is not, therefore, right to say that the practice arose by reason of a mistaken analogy based on the provisions of Rules 13 and 14 of Order 2

6. It seems to me that the practice arose, because it was convenient to deal with technical objections to the commissioners report at an earlier stage in order to determine if there were any reasons to be dissatisfied with the proceedings of the commissioner and if a further enquiry was necessary or not.

(7) Mr. R.S. Chatterji appearing on behalf of the opposite party has conceded that it is open to the parties to the suit to give further evidence as to the correctness or otherwise of the report of the commissioner. He has further conceded that the report of the commissioner will have to be considered again by the court in the light of such other evidence as may be given by the parties to the suit. Mr. Lala Atul Chandra appearing on behalf of the petitioners, has urged before us certain other points, such as (1) that the commissioner referred to certain matters which were outside the scope of the enquiry entrusted to him, and (2) that the commissioner referred to certain inadmissible evidence for calculating the quantity of coal alleged to have been extracted by the petitioners. These are matters which will fall for consideration at the hearing of the suit, and I do not think that the petitioners are precluded from urging these points at a later stage by reason of the order of the learned Subordinate Judge, dated 19/3/195

1. It is not proper that I should express any opinion at this stage with regard to those points.

(8) For the reasons given above, I do not think that the order of the learned Subordi nate Judge, dated 19/3/1951, was without jurisdiction. The application fails and is dis missed. In the circumstances of this case, there will be no order for costs.