M. P. CHANDRAKANTARAJ, J. ( 1 ) THIS second Appeal is preferred by contesting defendants against the conerurrent findings of the Courts below. ( 2 ) THE appellants were defendants 1 and 2 in O. S. No. 269 of 1968 on the file of the Additional Munsiff, Tumkur. The 1st respondent-plaintiff filed the suit pleading that he was the owner of Sy. No. 26/2 in the village Hirethotlukere, Kora hobli, Tumkur District, being a member of the joint family consisting of himself and his father and that his father had bought the suit schedule property under a sale deed dated 25-4-1925 and in terms of the sale deed was entitled to draw 1/6th share of water from the well situated in Sy No. 26; and Sy No. 37 belonging to 4th defendant, Sy. No. 26/1 belonging to defendants 1 and 2 and Sy Nos. 25 and 10 belonging to defendants 3 and 5 respectively had also the right to draw water from the well in equal shares. The plaintiff had prayed for a declaration of his right to take 1/6th share of water from the well situated in Sy. No. 26 and his right to use the pathway situated on the east of Sy No. 26/1 to enter his garden. Respondents 2, 3 and 4 who were defendants 3, 4 and 5 in the Courts below remained exparte and did not contest the suit while the appellants-defendants 1 and 2 contested. ( 3 ) THE contesting defendants in their written statement took the stand that Sy no. 26/1 belonged to them and denied that any pathway existed to the east of their land on which the plaintiff could claim any right and further asserted that they were the absolute owners of the well in Sy No. 26 which was situated in their portion and that nobody else had any right to draw water from the said well. On the above pleadings the following eight issue were framed by the trial Court: (1) Whether the plaintiff proves that he has a right to bring this suit ? (2) Whether the sketch produced with the plaint is correct? (3) Whether the plaintiff proves that his father has acquired a right to take water from the well in S. No. 26/1 for irrigation of the land in S. No. 26/2 under the sale deed dated 25-4-1925 ? (2) Whether the sketch produced with the plaint is correct? (3) Whether the plaintiff proves that his father has acquired a right to take water from the well in S. No. 26/1 for irrigation of the land in S. No. 26/2 under the sale deed dated 25-4-1925 ? (4) Whether the plaintiff proved that his father and himself have been uninterruptedly taking water from the well in S. No. 26/1 for the cultivation of S. No. 26/2? (5) Whether the plaintiff proves that he and his father have a right of access to the well ? (6) Whether there is a path way leading to S. No. 26/2 to the east of S. No. 26/1 and whether it is obstructed by the defendant? (7) Whether there is any cause of action for the present suit ? (8) To what reliefs are the parties entitled ? ( 4 ) IN the trial Court the 1st respondent-plaintiff examined himself and defandants 3, 4 and 5 in support of his case and produced several documents including the sale deed under which he claimed title to sy. No. 26/2 as well as the right to draw 1/6th share of water from the well. The documentary evidence included Tippani copy of Sy No. 26/2 as well as certain other revenue records, particularly. Ex. P5 which was the Index of Lands and exhibit P10 which was a record of the water resources pertaining to Sy. No. 26. Similarly, the defendants examined themselves and two others in support of their case and also had several documents marked in support of their case, but did not produce their title deed in respect of Sy. No. 26/1. ( 5 ) IT is seen that after the evidence on both sides had been closed, an application was made by the 1st respondent-plaintiff for the appointment of a Commissioner to make a spot inspection, prepare a sketch of the lands involved, viz. , Sy. No. 26/1, 26/2, 25, 10, 37 and other adjoining survey numbers to which reference was made in the plaint, the location of the well and to report whether there was any pathway as claimed in the plaint and submit a report thereon together with sketch. That application came to be allowed and an advocate-Commissioner was appointed with the necessary warrant to make the spot inspection, prepare a sketch and submit a report. That application came to be allowed and an advocate-Commissioner was appointed with the necessary warrant to make the spot inspection, prepare a sketch and submit a report. The Commissioner notified the contesting defendants and the plaintiff and carried out the spot inspection He submitted a report together with the sketch which came to be marked as Ex. P 12 and P 14 respectively along with certain other documents which were marked by consent of parties. The suit came to be decreed by the trial Court, essentially placing reliance on the recital in the sale deed Ex. P4 in regard to the right of drawing l/6th of water from the Kapile well. The location of the well and Sy. Nos. 26/1, 26/2 was identified by the trial court relying on the report of the Commissioner supported by the sketch as well as on the oral evidence of defendants 3, 4 and 5. Aggrieved by the judgment and decree, the defendants 1 and 2 filed RA. No. 184/1971 in the Court of the Additional Civil judge, Tumkur. The 1st appellate Court confirmed the judgment and decree of the trial Court more or less accepting the reasoning of the trial Court. Therefore, this present second appeal. ( 6 ) THOUGH several grounds have been urged in the memorandum, Sri K. S. Srinivasa Iyer, learned Counsel for the appellant has pressed into service only two of them and they are : (1) That the trial Court erred in law in accepting the Commissioner's report and the sketch in evidence as the same were not proved as required by law and that mere marking of the documents by consent would not render the same evidence in the case. (2) That the trial Court ought to have accepted the indisputable evidence Ex. D3 (Tippani copy) for knowing correctly the adjacent location of the various survey numbers, particularly the location of Sy. No. 26/1 in relation to Sy. No. 26/2 as against the incorrect version of Exs p12 and P14 which ought to have been rejected. ( 7 ) BEFORE dealing with the contentions advanced on the above two grounds, it must be noticed that the learned Counsel for the appellant did attempt to get this appeal disposed of as a connected matter with RSA 351 of 1973 but without success. ( 7 ) BEFORE dealing with the contentions advanced on the above two grounds, it must be noticed that the learned Counsel for the appellant did attempt to get this appeal disposed of as a connected matter with RSA 351 of 1973 but without success. At no point of time, in the Courts below, did the appellants in this appeal or one of them who was the defendant in the other suit make any attempt to club the two suits together and have common issues framed and common evidence led. Nor was any attempt made to club the two appeals together in the first appellate court. It is in these circumstances that two suits, resulting in these two appeals, though in respect of the same survey number but on distinct and separate causes of action have been disposed of by separate orders as that was the correct thing to do by the Courts below. ( 8 ) THE first contention urged for the appellants should not detain me long. Specific provision has been made under sub-rule (2) of Rule 10 of Order XXVI cpc to treat the report of the Commissioner as evidence in the case. Sub-rule (2) of Rule 10 of Order XXVI is as follows :"10 Report and depositions to be evidence in suit: (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 his report or as to the manner in which he has made the investigation. " ( 9 ) THE only circumstance in which the report of the Commissioner cannot be read as evidence as expressly indicated above, will be, when there is failure to follow the strict procedure laid down under Rule 18 of Order XXVI. Rule 18 provides for direction to parties to appear which has been construed judicially to mean that the parties to the suit must have notice as to when the Commissioner proposes to execute his warrant. Rule 18 provides for direction to parties to appear which has been construed judicially to mean that the parties to the suit must have notice as to when the Commissioner proposes to execute his warrant. This position came to be examined by this court in the case of Shivarama Bhat v. Mahabala Bhatt Muliya (1969) 2 Mys LJ 284. Narayana pai, J. as he then was, considered the effect of absence of notice to one of the defendants in the suit, under Order XXVI rule 18 CPC. He came to the conclusion on the facts of that case that even when the Commissioner was appointed ex-parte, if the Court directed the Commissioner to issue notice to the parties interested before executing the commission, then the commissioner would be the person specially appointed by the Court to serve notice on the parties under Rule 18 of Order xxvi and that as there was such failure to issue notice by the Commissioner to one of the parties to the suit, as it happened in that case, it would not be evidence against that party. In fact, the learned judge put it on stronger grounds to accept the report as evidence in the following terms :"even in the case of the third defendant who was not present at the time of the execution of commission, the legal consequence would be not a total invalidation of the report but non-availability of the same as evidence under Rule 10 (2) of Order XXVI. In other words, the report by itself, without anything more, cannot become or be available as evidence in the suit against the third defendant. But that is not saying that the report cannot at all be made use of in any other way in the suit. . . . . . . . . . . . . . . . " ( 10 ) IT is not the case of the appellants that they had no notice that the Commissioner was executing the warrant. It is true that the appellants did file their objection to the Commissioner's report. But from the records it is evident that it was not pursued or pressed. . . . . . . . . " ( 10 ) IT is not the case of the appellants that they had no notice that the Commissioner was executing the warrant. It is true that the appellants did file their objection to the Commissioner's report. But from the records it is evident that it was not pursued or pressed. Nor did they take advantage of the provisions of Rule 10 (2) of Order XXVI to press into their service the right to call the Commissioner as a witness and elicit such answers as they thought would be to their advantage. Having failed to do so, what is declared by law to be evidence or part of the evidence in the case cannot now be contended to be no evidence at all in the case. Therefore, the first contention for the appellants is rejected as not tenable. ( 11 ) THE second contention urged for the appellants is indirectly linked to the first ground urged. In fact the learned counsel, elaborated the second contention that the Courts below should have attached greater evidentiary value to a public document like Ex. D3 the Tippani copy of survey No. 26, which had intrinsic evidence in itself to locate the first respondent plaintiff's land to the north of the defendant's land as opposed to the report of the Commissioner which showed that the land of the appellant's was to the west of the plaintiff's land. In fact, a perusal of ex. D3 does indicate that the eastern half of the appellant's land is directly below Sy No. 26/2 Adverting to the normal procedure followed in the preparation of sketches, maps and survey records, it is reasonable to infer that what is at the top is North and what is at the bottom is south and thereby one could as well fix what is east and what is west. Even if we do so, how that helps the case of the appellant - defendants is difficult to understand. The issues raised in the suit related to the location of the kapile well in relation to Sy. No. 26/2, 26/1, 10, 14 and 32 as pleaded by the plaintiff. Therefore, the Advocate Commissioner located the well in part of Sy. No. 26/1 and that would definitely have the effect of placing the remaining part of Sy. No. 26/1 to south-West even with reference to Ex. No. 26/2, 26/1, 10, 14 and 32 as pleaded by the plaintiff. Therefore, the Advocate Commissioner located the well in part of Sy. No. 26/1 and that would definitely have the effect of placing the remaining part of Sy. No. 26/1 to south-West even with reference to Ex. D-3. Undoubtedly, Ex. D3 was a certified copy of a public document and did not require further proof. But, the lower courts did not commit any error of law in not placing reliance upon that document in rejecting the case of the appellant in as much as Ex. D3 does no more than to indicate the situation of the land in Sy. No. 26. It is conclusive proof of that fact and no more. But Ex. D3 does not indicate the location of the well nor did the appellants lead any other documentary evidence to prove the location of the well in a place different than where the Commissioner had located the same. On the other hand, as already noticed, that could not be done because the Commissioner was appointed when the parties had closed their cases in the trial Court. ( 12 ) THEREFORE, the two grounds urged in the appeal for the appellants do not make out any error of law committed by the Courts below as a consequence of which the judgment and decree are required to be interfered by this Court under section. 100 of Code of Civil Procedure. Therefore, this second appeal is dismissed ( 13 ) IN the circumstances of the case, the parties will bear their own costs. --- *** --- .