JUDGMENT S. Saghir Ahmad, J. 1. This is a defendant's Second Appeal. 2. The suit was filed by the plaintiffsrespondents for injunction, for restraining the defendantsappellants from interfering with their possession over the land in dispute which was claimed by them to be their Sedan land. The suit was decreed by the trial court and the decree was upheld by the lower appellate court. It is in these circumstances that the present second appeal has been filed. 3. A perusal of the judgment passed by the courts below would indicate that reliance has been placed on two documents, being Exhibits 7 and 10 which are maps of the commissioner, prepared respectively in Regular Suit Nos. 119 of 1969 and 33 of 1969, between the same parties. It further appears that at the stage of first appeal an objection was raised that the trial court was not justified in placing reliance on these two documents. The objection was not entertained by the lower appellate court and it proceeded to dispose of the appeal by relying upon the aforesaid two documents, although it was conscious of the fact that Regular Suit No.33 of 1969 was still pending and the map Ext. 10 was confirmed subject to the evidence of he parties. 4. It has been contended by the learned counsel for the appellants that Exhibit7, which was a certified copy of the map prepared by the commissioner in the earlier suit No. 119 of 1969 between the same parties, as also Exhibit 10, which was also a certified copy of the map prepared by the commissioner in Regular Suit No. 33 of 1959, between the same parties, were inadmissible and the courts below were not justified in placing reliance upon these two documents to hold that the land in dispute was the 'sehaa' land of the respondents. As against this, it has been contended by the learned counsel for the respondent that since the reports were prepared by the commissioner in a suit between the same parties. The question, therefore, that has to be decided in this appeal is : whether Exhibits nos. 7 and 10 were the documents on which reliance could be placed by the Courts below ? 5. A commission for local investigation can be issued by a court under order 26, Rule 9 CPC. The question, therefore, that has to be decided in this appeal is : whether Exhibits nos. 7 and 10 were the documents on which reliance could be placed by the Courts below ? 5. A commission for local investigation can be issued by a court under order 26, Rule 9 CPC. Subrule(2) of Rule 10 provides that the report of the Commissioner shall be evidence in the suit and shall form part of the record. 6. It is thus obvious that the report of the commissioner, which would include the map prepared by him, can be treated to be evidence in that suit alone in which the commission has been issued and the report has been filed. If a copy of such report or the map is filed in another suit, then it will have to be proved like any other document. 7. It has been held by the Calcutta High Court in Surat Chandra Rakhit v.. Sarla Bala Ghosh and others (AIR 1928 cal. 63) that although a report and a map prepared by the commissioner can be taken into evidence only in the suit in which he mad; the inquiry, yet they can be admitted in evidence in another suit under the Evidence Act on being proved by the person who made them. 8. Since in the instant case the persons who had prepared the maps in the earlier suit have not been produced to prove them, the said maps which are contained in Exts. 7 and 10 are inadmissible in evidence. 9. The learned counsel for the respondent has next contended that the maps prepared by the Commissioners in the earlier suit would be admissible under Section 33 of the Indian Evidence Act. 10. Section 33 of the Evidence Act lays down as under: Evidence given by a witness in a judicial proceeding, or before any person authorised by law to take it, is relevant for the purpose of proving, in a subsequent judicial proceeding, the truth of the facts which it states, when the witness is dead or cannot be found, or is incapable of giving evidence, or is kept out of the way by adverse party, or if his presence cannot be obtained without an amount of delay or expense which, under the circumstances of the case, the Court considers unreasonable. 11. Section 33 speaks of the evidence given by a witness. 11. Section 33 speaks of the evidence given by a witness. It makes the previous statement of a witness admissible, in certain circumstances, in a subsequent Judicial proceeding. 12. The map prepared by the commissioner in an earlier suit cannot be equated with the statement of a witness. Moreover, there is nothing on record to indicate that the plaintiff respondent, who had filed the documents in the suit, had, at all, made any attempt to summon the commissioner who had prepared the map contained in Exhibits 7 and 10 and that the court was of the opinion that their presence could not be obtained without unreasonable delay or expense. There is also nothing on the record to show that the commissioner who had prepared the maps was dead or could not be found or was incapable of giving evidence. 13. Thus the maps prepared by the commissioner in the previous suit would not be admissible even under Section 33 of the Evidence Act. 14. Since a perusal of the judgments passed by the courts below clearly indicates that reliance has been placed by the courts below on Exhibits 7 and 10 which were inadmissible in evidence, the said judgments cannot be sustained. 15. I, accordingly, allow the appeal, set aside the Judgment and decree passed by the courts below and remand the case to the trial court to decide it afresh in the light of the observations made above and in accordance with law. The parties shall bear their own costs. [Appeal allowed]