K. Bhaskaran, Ag. C.J.

1. An extent of 0.0068 hectares of land in R.S. No. 394|7 of the Areacode village with the building thereon, was acquired for a public purpose, viz. for widening and improving the Areacode-Vazhakkad road, after having published the notification in that behalf under sub-section (1) of Section 3 of the Kerala Land Acquisition Act ( the) on 5-12-1972. The Land Acquisition Officer awarded Rs. 21,986|- for the shop building and the land value at the rate of Rs. 25,925|- per hectare, as per his award No. 23 of 1976 dated 14-8-1976. It is aggrieved by this valuation made by the Land Acquisition Officer that the respondents-claimants made the reference under Section 20 of the. When the matter came up before the Subordinate Judge, Manjeri, in L.A.R. No. 4 of 1977, which was reference under Section 20 of the Act, three witnesses, A.Ws. 1 to 3, were examined on the side of the Claimants; and on the side of the respondent, R.W. 1 was examined. Ext. A1 is the certificate issued by the Executive Officer, Areacode Panchayat to one of the claimants. Ext.-A2 is the registration copy of sale deed No. 251168 of the Sub Registrars Office, Areacode, which was proved by A.W. 3, who had executed that document on 12-2-1968. Under that document, 1.25 cents of land in R.S. No. 392|3 of that village was sold by A.W. 3 to the Muslim League Committee for Rs. 1000|-. According to her, that price was received from the vendee; and that represented the value of the land inasmuch as there was no other improvement or plants on the land in question. As against this, there is the evidence of R.W. 1, the Special Revenue Inspector, who assessed the land value on the basis of Ext. R1 sale deed dated 24-7-1972 (document No. 105|72 of the S.R.O. Areacode) In the course of the evidence, R.W. 1 admitted that Ext. Rl property was away from the land acquired in this case, though it was lying within one furlong therefrom. Between Ext. Rl property and Ext, A2 property, the latter is nearer to the acquired property. The rate of land value as could be determined from Ext. A2 for that land would come to Rs. 800/- per cent. Adopting that rate to be the rate applicable for the land in the present case also, the court below fixed the land value of the property at Rs. 1364.22.

2. The main contention, however, is in regard to the enhancement of the value of the building. In contrast to Rs. 21,986|- awarded by the Land Acquisition Officer, the court below on referenece awarded Rs. 40000/- by way of building value, as against the claim of Rs. 75000|- by respondents-claimants. The admitted case, as is found stated in paragraph 5 of the judgment under appeal, is that the building was constructed in 1967. The significant fact is that neither the valuation statement prepared by the P.W.D. Engineer has been produced in court nor has the P.W.D. Engineer who made the valuation, been examined in court. A.W. 1 who gave evidence on behalf of the claiments, has stated in evidence that a sum of Rs. 4200|- used to be received by way of annual rent for the building in question. Ext. A1 certificate issued by A.W. 2, the Executive Officer of the Panchayat, also was relied on in this behalf. Ext. A1 would go to show that the rental value of the building, as assessed by the Panchayat, from 1973 onwards, was Rs. 4200|-, per annum. Inasmuch as the acquisition was under the notification dated 5-12-1972, strictly speaking, the rental value for the period from 1973 onwards, found in Ext. Al, could not be accepted as quite relevant for the purpose of fixation of income of the acquired building in this case. In fixing the value of the building, the court below has placed reliance on Ext. X1 and Ext. X2 reports of the Commissioner. According to Ext. X1 and Ext. X2, the total value of the building, after deducting 10% for the depreciation, is Rs. 40,497.77. The Commissioner had in his reports stated, inter alia, that the building was in good condition at the time of its acquisition. It is in this background that a round figure of Rs. 40000|- has been fixed as the value of the building by the court below, bearing in mind, that the Commissioner in Exts. X1 and X2 reports, had fixed the value at Rs. 40,497.77, after making a deduction of 10% for depreciation, the construction of the building having been in the year 1967.

3. The Advocate-General, who argued the case for the appellant-State, submitted that the court below ought to have preferred the valuation made by the expert, the P.W.D. Engineer, so far as the value of the building was concerned in preference to the estimate made by the Commissioner, who had no particular training in that behalf. We find no force in this contention. We have already noticed that neither the P.W.D. Engineer who made the valuation was examined in court nor had the valuation report prepared by him produced in court. There was, therefore, total absence of acceptable evidence on the side of the State. The Advocate-General then contended that, if, for the reason that the Engineer who was the author of the valuation statement was not examined in court, the court below was not prepared to accept the valuation made by him, for the same reason the valuation found in Exts. X1 and Ext. X2 reports made by the Commissioner who also was not examined in court, ought not to have been accepted by the court below. This submission, in our view, overlooks the provisions of Order XXVI Rule 10 C.P.C. Sub-rule (2) of Rule 10 of Order XXVI reads as follows:

Report and depositions to be evidence in suit-- Commissioner may be examined in person--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.

There could be no doubt that the court below was perfectly justified in placing reliance on the materials found in Exts. X1 and X2, which formed part of the records, and which is evidence in the case. Of course, if the opposite side had any objection to any of the matters mentioned in the reports, or the manner in which he (the Commissioner) made the investigation, what that party ought to have done was to have the Commissioner examined with the leave for the court and elicit such information as it required. Not having chosen to do that, the appellant-State could not at this distance of time make a submission that the court below ought not to have relied on Exts. X1 and X2 reports submitted by the Commissioner which, as already noticed, would be evidence in the case, and would form part of the record in the case.

For the foregoing reasons, we find no merit in this appeal by the State. The result, therefore, is that the appeal is dismissed, however, without any order as to costs, in the circumstances of the case.