JUDGMENT
Anantakrishna Ayyar, J.
1. The plaintiff is the appellant in this second appeal. He sued for a declaration of his title to the house and site “A” marked in the plaint plan and for an injunction restraining the defendants from trespassing upon his portion and from pulling down the wall between the portions A and B. Defendant 1 is the widow of the plaintiff’s deceased brother. Her case was that the suit house was not divided between the parties but that for convenience of enjoyment, the plaintiff was in possession of one portion and that she was in possession of another portion of the same, and that the allegation in the plaint that the plaintiff was the owner of one portion of the house was not correct. It would seem that, after the death of defendant l’s husband, there was an arrangement evidenced by Ex. 1 dated 18th November 1901 by which certain properties were given to defendant 1 by the plaintiff. It would also seem that, subsequently, with reference to the lands covered by Ex. 1 there was an actual division by metes and bounds, but with regard to the suit house there was no division between the plaintiff and defendant 1 and that each occupied a particular portion of the house only for convenience of enjoyment of the same. Defendant 1 on 30th November 1922 executed a sale deed in favour of defendants 2 to 4 in respect of her rights to a moiety of the suit house.
2. The plaintiff stated that defendants 2 to 4 were trespassing upon his portion of the house and were trying to pull down the wall and accordingly he sued for a declaration of his title and for an injunction. The first Court found that there was an actual division by metes and bounds between the plaintiff and defendant 1 as regards the house and that the plaintiff was entitled to the house and site marked “A” in the plaint; and he accordingly decreed the suit in favour of the plaintiff. On appeal by defendants 2 to 4, the lower appellate Court came to the conclusion that there was no actual division by metes and bounds in regard to the suit house, that the plaintiff and defendant 1 were enjoying particular portions of the suit house for the sake of convenience only. On that finding that there was no final division of the house as alleged by the plaintiff, the suit was dismissed. The learned Subordinate Judge in para. 13 of his judgment remarked that the proper course would have been for the parties to agree to have a partition of the house effected as between themselves, so that all future disputes might be avoided; but he regretted that none of the parties asked for such a prayer and consequently he could not proceed further with that suggestion. In this second appeal preferred by the plaintiff it was argued by his learned advocate that the finding of the lower appellate Court on the question of non-division was not sustainable because the lower appellate Court had not considered the evidence of the witnesses examined on the side of the defendants. When once it was admitted that there was a partition, the presumption would be that the partition was complete, and the learned advocate submitted that the way in which the lower appellate Court proceeded to dispose of the question,.throwing the onus of proof on the plaintiff, was not justified in law. If the lower appellate Court had really proceeded in the way suggested by the learned advocate, I agree that his criticism will be well-founded; but as I read the judgment of the lower appellate Court, at p. 4,. line 36, I find the lower appellate Court has considered the evidence of the defence witnesses:
It is not necessary to comment on the evidence of the defendant’s witnesses. The reason given by defendant 1 (D.W. I) for a tentative division is very convincing.
3. So that, according to my reading of the judgment, the lower appellate Court did consider the defence evidence and was satisfied with the evidence of the first witness on the side of the defendants. I think it is a finding which is binding on me in second appeal and accordingly this contention of the learned advocate fails.
4. The second point urged by the learned advocate for the appellant was that even on the finding that there was no final division between the parties,. the lower appellate Court ought to have considered whether the plaintiff would be entitled to the injunction prayed for in the plaint. The answer to this contention seems to be this: the plaintiff came into Court with a specific allegation that the properties had been actually divided by metes and bounds and that the plaintiff was the absolute owner of his portion of the properties and the defendant 1 of hers. As between the parties if the partition has been proved, the plaintiff’s prayer for an injunction would have to be adjudicated upon that footing. If, however, the parties were not divided but were only tenants-in-common and for the sake of convenience each had been in possession of some particular portion, then the principles governing the Courts in respect of a grant of injunction at the instance of one tenant-in-common as against others would be essentially different from’ those governing the Courts in respect of a grant of injunction between neighbouring owners of lands or houses. But having regard to the allegations in the plaint and the issues framed in the case, there are no materials on record from which the Court could come to the Conclusion whether a proper case had been made out for the grant of an in: junction as between tenants-in-common. In fact, the plaintiff came into Court with certain definite allegations, which, however, were not proved. Justice would not be meted out if an injunction |be granted between tenants-in-common when there had been no proper allegations not grounds justifying the grant of the same. It therefore seems to me that the second ground also fails.
5. I should have been glad if the learned advocates in this case could have found their way to agree to have this suit remanded to the first Court so that an actual partition between the parties in regard to the suit house could be worked out without further litigation; but I am in no better position now then the lower appellate Court was when it wrote para. 13 of its judgment. That being so, I regret that nothing could be done except to leave the parties to take steps to have a partition of the suit house, so that future quarrels could be avoided.
6. Finally before leaving this case, I think I should make a few observations with reference to the remarks made by the lower appellate Court in para. 12 of its judgment. It says;
The first commissioner was seat while the suit was pending disposal in the Court of the District Munsif, Narasaraopet. As is the practice in the Court of the Additional District Munsiff, Guntur, to send a second commissioner in all such cases, a second commissioner was sent.
7. If the practice in the Additional District Munsiff’s Court of Guntur is, as is remarked by the lower appellate Court in para. 12 of its judgment, I think the sooner that practice is put an end to the better will it be in the interests of the parties as well as the convenience of the Court. The jurisdiction of a Court to issue commissions is governed by the provisions of Order 26, Civil P.C. As provided in Order 26, Rule 10, Sub-clause 3 it is only:
where the,Court is for any reason dissatisfied with the proceedings of the commissioner, it may direct such further enquiry to be made as it shall think fit.
and if necessary supersede the report of the first commissioner and either appoint a second commissioner or give-further directions in the matter. The practice of appointing a second commissioner without formally receiving objections to the first commissioner’s report and without considering whether the first commissioner’s report should be superseded or not is a practice which cannot be too strongly condemned. In fact, in the case reported in Thottamma v. Subramaniayyan A.I.R. 1922 Mad. 219 at p. 82 (of 4,5 Mad.) the High Court had occasion to express its disapproval of such practice in the following terms:
It certainly encourages a Haphazard and careless selection of commissioners. It subjects parties to unnecessary and avoidable expense and encumbers the records with useless papers. In our opinion this practice should be put an end to at once. We want it to be distinctly understood that the filing of objections to a report is no ground for appointing another commissioner and that in all cases where a second commissioner is appointed to do the Work, the reasons for adopting such a course must be recorded in writing to enable the appellate Court to see whether judicial discretion has been properly exercised.
8. In this case, the Court should first have considered whether the first commissioner’s report should be superseded and must have recorded its reasons in writing when it came to the conclusion that it should be superseded. Then and then alone, it had jurisdiction to appoint a second commissioner to do the same work allotted to the first, I thought it necessary to draw the attention of the lower Courts to the observations in Thottamma v. Subramaniayyan A.I.R. 1922 Mad. 219 so that the practice mentioned by the lower appellate Court to prevail in the Additional District Munsiff’s Court might be put an end to.
9. The second appeal fails for the reasons mentioned by me and is dismissed with costs.
