JUDGMENT
M.B. Vishwanath, J.
1. The appellant-plaintiff (since deceased by his L.R.) has filed the present second appeal under Section 100 of the C.P.C.
2. The appellant-plaintiff filed O.S.No. 204/1974 on the file of the Principal Munsiff, Bellary, against the three defendants for declaration of this right of way (cart track) to his land bearing S.No. 59-A from the village along the boundary between S.Nos. 62, 60 and 165 (as shown in the plaint sketch). He also prayed for permanent injunction to restrain the defendants from interfering with his right of way (cart track).
3. The plaintiff pleaded that he had customary right, easementary right and easement of necessity to use the cart track on the boundaries between S.Nos.62, 60 and 165. The third defendant filled the written statement and this was adopted by the second defendant.
4. The Trial Court decreed the plaintiff’s suit as prayed for. The learned Munsiff declared that the plaintiff had got the right of way (cart track) along A,B,C,C1,C2,D and granted injunction.
5. Aggrieved by the judgment and decree passed by the learned Munsiff, the second defendant filed R.A.No. 7/1979 on the file of the Civil Judge, Bellary, against the plaintiff, in the appeal, the second defendant did not implead the other defendants.
6. The learned Civil Judge partly allowed the appeal. He granted a decree for declaration that the plaintiff was entitled to the suit cart track upto A,B,C,C1,C2 and from C2 to D the plaintiff is entitled to use it as foot path as easement of necessity. He also granted the injunction accordingly.
7. Aggrieved by the judgment and decree passed by the appellate Judge modifying the decree passed by the learned Munsiff, the plaintiff has preferred the present second appeal.
8. At the time of admitting the appeal, this Court has framed the following two substantial question of law:
1) Whether the lower appellate Court was in law right in relying on the evidence of D.W.4 and his report and sketch, Exhibits D-5 and D-6, as if they were covered by the provisions of Order 26 Rule 9 C.P.C. though D.W.4 was not appointed as a Commissioner in this suit, but was appointed as such in O.S.No. 205/1974 ?
2) Whether the lower appellate Court is right in ignoring the evidence of D.W.5 while taking into consideration the evidence of D.W.4? 9. By consent of both Counsel, the following additional substantial question of law been formulated : Whether the lower appellate Court in law, was not right in ignoring the document Ex.D-7?
10. In this Court, the learned Counsel for the appellant-plaintiff did not press the point that the suit cart track was customary one and also a prescriptive one. He confined himself to the stand that the suit cart track was an easement of necessity. It should be noted at the outset that both the Courts have come to the conclusion that land of the plaintiff bearing S.No. 59-A is the land locked. The genuineness of the suit sketch has been disputed.
11. The learned appellate Judge has taken into consideration mainly the evidence of Advocate Commissioner D.W.4, who had been appointed Commissioner in O.S.No. 205/1974 and submitted the report as per Ex. D-5 along with the plan drawn up by him as per Ex.D-6.
12. It is clear from the evidence of the Advocate Commissioner D.W.4 that he was not examined in the previous suit O.S.No. 205/ 1974 and his report and plan, Exs.D-5 and D-6, were not marked in that suit.
13. The learned appellate Judge has also observed in his judgment that suit O.S.No. 205/1974 was between the same parties as the present suit O.S.No. 204/1974 (out of which the present second appeal arises). This observation by the learned appellate Judge is factually incorrect. In fact, the suit O.S.No. 205/1974 was not between the same parties. The plaintiff in the present suit was not a party in O.S.No. 205/1974. The other suit O.S.No. 205/1974 was compromised between the parties.
14. It is clear that the appellant-plaintiff was not a party to O.S.No. 205/1974 which ended In compromise. It has been aid down by the Kerala High Court in VEERABHADRAN PILLAI v. BAHGAVATHI PILLAI, 1954 K.L.T. 324 that it is improper to get Commissioner’s report behind the back of one of the parties to the litigation and a decision based on such a report is unsustainable.
15. When the present suit O.S.No. 204/1974 (out of which the present appeal arises) and O.S.No. 205/1974 were not between the same parties, and when the Advocate Commissioner was appointed in O.S.No. 205/1974 and when his report Ex.D-5 and plan Ex.D-6 were not marked in O.S.No. 205/1974, the learned appellate Judge has committed a serious error in law in looking into Exs. D-5 and D-6 to hold against the appellant-plaintiff.
16. What Order 26 Rule 10 says is 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 suit referred to is the particular suit in which the Commissioner has been appointed, Order 26 Rule 10 of the C.P.C. does not say that the Commissioner’s report and evidence in some other shall be evidence in a suit in which he was not appointed as Commissioner.
17. For the aforesaid reasons, I hold that the lower appellate Court was not right in law in relying on the evidence of D.W.4 and his report and sketch Exs. D-5 and D-6, as if they were covered by the provisions of order 26 Rule 10 C.P.C., though D.W.4 was not appointed as Commissioner in the suit of which the present second appeal arisen.
18. The reasoning of the learned appellate Judge is perverse.
19. D.W.5 was defendant No. 3 in the Court of the first instance. He has stated in his evidence that he purchased 2 acres 55 cents of land under the original of Sale Deed Ex.D-7 and in his Sale Deed it is recited that 10 cents in S.No. 60 is set apart for the cart track. I have already stated that defendant No. 3 has filed the written statement and defendant No. 2 has adopted his written statement. When defendant No. 3 has admitted the existence of the cart track, the learned appellate Judge was wholly wrong in law in ignoring the evidence of defendant No. 3 and his Sale Deed Ex.D-7 which relate to S.No. 60 purchased by defendant No. 3 (D.W.5). This covers my answer to substantial question of law Nos. 2 and 3.
20. It is nobody’s case that the path from C2 to D is a foot path and not a cart track. The learned appellate Judge was thoroughly wrong in law in holding that C2 to D was foot path, having agreed with the learned trial Judge that the plaintiff’s land was land locked.
21. In view of the conclusions reached above, the appellant-plaintiff is entitled to succeed. But the judgment and decree passed by the learned trial Judge has to be modified, bearing in mind that the learned Counsel for the appellant-plaintiff confined himself to the stand that the right of cart track was only an easement of necessity.
ORDER
The appeal is allowed. The judgment of the appellate Judge that from C2 to D in the plaint sketch is only a foot path to reach the land of the plaintiff is set aside. The trial Court’s judgment in O.S.No. 204/1974 is restored. But it is made clear that the appellant-plaintiff (since deceased by his L.R.) is granted declaration and injunction on the ground that A,B,C,C1,C2 and D in the plaint sketch is an easement of necessity.
In the circumstances of the case, no costs through-out.