JUDGMENT S.H.A. Raza, J. 1. This a defendant's second appeal, arising out of the judgment and decree dated 19th January, 1989, passed by IInd Additional Civil Judge, Faizabad arising out in Regular Suit No. 366 of 1970 decided by Munsif Sadar, Faizabad by judgment and decree dated 31.1.1986. 2. The plaintiff/respondent filed the suit in the court of Munsif Sadar, Faizabad originally for permanent injunction against the appellant alleging, inter alia, that the accommodation in dispute is the southern portion of a larger building described in List 'A' of the plaint, is the ownership of the appellant which is a registered Society, that the building was very old in which in the southern portion Puttu Lal father of the respondent was a tenant of the appellant at Rs. 10 per month and in the northern small portion one Mahabir Prasad was a tenant at Rs. 6 per month. In the southern portion Sri Puttu Lal was carrying on a shop for his cloth business. The building was in a dilapidated condition. In the year 1971 a notice under Section 263 of the Municipal Board Act was given to the plaintiff and the defendant and the then President of the appellant, Sri Mahesh Kapoor, asked the plaintiff/respondent and Mahabir Prasad to agree for demolition of the building as the building could not be demolished without consent of the tenant and the same was in a dangerous condition. It was stated in para 4 of the plaint that on 4.5.1971 there was an agreement between the then President of the appellant Sri Mahesh Chandra Kapoor, Raj Kishore Secretary and Vice President Ram Chandra Kesarwani and the members of the Managing Body and the plaintiffrespondent that the building may he demolished and a new shop identical with the old shop of the length and width would be constructed by the appellant and the respondent would be inducted as a tenant on a higher rent of Rs. 50 per month; that on 4.9.1971 the said old building was demolished and on 15.12.1971 the plaintiff was given possession of the new building and tenants were given a right to make a temporary wall between the two shops; that the plaintiffrespondent was threatened thereafter that he would be evicted by the appellant. 50 per month; that on 4.9.1971 the said old building was demolished and on 15.12.1971 the plaintiff was given possession of the new building and tenants were given a right to make a temporary wall between the two shops; that the plaintiffrespondent was threatened thereafter that he would be evicted by the appellant. The plaint was lateron amended and a new para 8A was added alleging, inter alia, that the appellant took forcible possession on 29.1.1971 and there was, therefore, a cause of action for the relief of the possession to the plaintiff. 3. The defendantappellant filed a written statement in which the alleged agreement by the plaintiff was specifically denied. In para 3 of the written statement it was alleged that the notice by the Municipal Board was not given on 4.9.1971; that in para 15 of the written statement it was pleaded that the plaintiff No.2 that is, the present respondent himself relinquished his possession and made a surrender and since then the shop was vacant; that the condition of the shop was not good and the plaintiff did not like to continue with the tenancy; that a clear implied surrender was pleaded; that it may be mentioned that the question of surrender was gone into by the two courts below and the parties were alive to that question specifically throughout the trial of the case and also before the first appellate court. In para 18 of the written statement (sic) that the plaintiff was doing service and there was no cloth shop of the plaintiff respondent after the death of his father was alleged. In the additional written statement it was further averred that the plaintiffrespondent was not a tenant at the time of filing of the suit and even before it and hence he had no right to file the present suit. It was further averred that on 1.3.72 the shop in question was let out to Sri Ajeet Kumar Rastogi at Rs. 250 per month after the surrender of the tenancy by the plaintiffrespondent and he is running in it a cloth business in the style of 'Alka Sari Centre'. It was further pleaded that after the demolition of the whole building the plaintiffrespondent had no subsisting title of tenancy and the suit is bad for nonjoinder of Sri Ajeet Kumar Rastogi who was in actual physical possession of the accommodation. 4. It was further pleaded that after the demolition of the whole building the plaintiffrespondent had no subsisting title of tenancy and the suit is bad for nonjoinder of Sri Ajeet Kumar Rastogi who was in actual physical possession of the accommodation. 4. Before the trial court, plaintiff examined himself in support of his case. Defendantappellant examined his Secretary Sri Raj Kishore Agarwal. The trial Court dismissed the suit. The first appellate court came to the conclusion that the tenancy of the plaintiff/respondent was subsisting; the plea of implied surrender raised by the defendant/appellant in his written statement did not find favour by the lower appellate court. The appeal was allowed and the lower appellate court reversed the judgment and decree of the trial court, directing the appellant to handover the possession of the shop in question to the plaintiff/respondent. 5. The appellant challenged the judgment of the lower appellate court mainly on the ground that while passing the said judgment the lower appellate court did not record reasons for reversing the findings recorded by the trial court and without considering the reasons relied upon by the trial court, the appeal was allowed. 6. Sri H.S. Sahai, learned counsel appearing on behalf of the appellant has placed reliance on the following authorities in support of his arguments that it is always obligatory for the first appellate court while disagreeing with the trial court's finding to give and assign reasons for setting aside the findings and consider the evidence on the question specifically, but the same has not been done and hence an interference can be made in the second appeal; AIR 1988 Supreme Court, page703 [Para 8], I.B. Sharma v. State of U.P. AIR 1988, Supreme Court page, 1858 (para 3 & 5), Dilbagrai Punjabi v. Sharad Chandra, AIR 1976, Supreme Court, page2229, Damaadi Lal v. Parashuram & others in re ; Damaadi Lal v. Parashu Ram & others, 1940 PC 192 (196), AIR 1977, Calcutta NOC199, Kalpana Mehta v. Jyoti Prasad Singh and others, AIR 1978 (NOC) 15, (Gauhati) Devendra Narayan Roy v. M/s. Bhura Bros, and AIR 1980 Patna, 89 [Para 9]. 7. In the aforesaid authorities, it have been held that while decreeing the suit on assumption not supported by evidence and without considering entire evidence an interference can be made. 7. In the aforesaid authorities, it have been held that while decreeing the suit on assumption not supported by evidence and without considering entire evidence an interference can be made. In case the finding is based on the evidence considering all the evidence although ignoring important and relevant evidence, interference can be made I have very anxiously gone into the judgment dated 19.1.1988, passed by the learned Civil Judge. He has not only discussed the evidence of the parties but has given definite reasons for disagreeing with the findings recorded by the trial Court. He has clearly discussed the statements of D.W. 1 in which he has admitted that till the demolition of the shop Mahavir Prasad and Jai Prakash carried on business in the shop. He stated that in the year 1971 notice was received from the Nagar Mahapalika for the demolition of the shop in question. Mahavir Prasad and Jai Prakash themselves vacated the shop as the shop had fallen down. From the aforesaid admission of D.W. 1 in the first appellate court, the learned Civil Judge reached to the conclusion that the averment of the plaintiff stood proved that till 1971 the said building axisted in an old shape and he used to carry on business in the said shop and Mahavir Prasad used to carry on a betel shop and the said shop had fallen down in the year 1971. D.W. 1 also admitted the fact that the said shop was demolished in the year 1971. From this admission the trial Court concluded that the shop in question was in dilapidated condition, although it had not completely fallen down and hence in the year 1971 the same was demolished. On the basis of the said admission the first appellate court further concluded that the averment of the defendant/appellant that the respondent was in service and did not carry on business in the shop in question and was not tenant of the same stood disproved. Hence the argument of the learned counsel that the lower appellate court while disagreeing with the findings of the trial court did not record adequate reasons has no substance. Hence the precedence's relied upon by the appellant are quite distinguishable inasmuch as aforesaid authorities do not apply to the case of the appellant. Hence the argument of the learned counsel that the lower appellate court while disagreeing with the findings of the trial court did not record adequate reasons has no substance. Hence the precedence's relied upon by the appellant are quite distinguishable inasmuch as aforesaid authorities do not apply to the case of the appellant. It was also contended that the findings on the question of implied surrender is a mixed question of law and facts and in this regard the learned counsel placed reliance on AIR 1980, page266, Smt. Madhubala v. Smt. Bhudhia (para 11), in which it was held that inference from facts a to implied surrender of tenancy, is question of law and fact. In support of this contention learned counsel of the appellant further relied upon the precedents reported in 1939, page257. In re : Raja Sri Amar Krishna Narain Singh v. Seth Naver Husain and others, All India Rent Control Journal, 1972, page322 (Delhi High Court), Indarsen Madhot v. Phool Chand, AIR 1966 Madras, page 19, T. Chongalvarya Chattior v. Narain Chattiar, AIR, 1966 Allahabad, page323, Lalman Das and others v. Hiralal, AIR, 1957, Andhra Pradesh, page619 (at page625). In the aforesaid authorities it have been held that an implied surrender is a mixed question of facts and law. In li939 Avadh page257 it had been held that implied surrender between the lessor and lessee, such as an implied surrender of the old one or in otherwise based upon the consent of the parties, or by relinquishment of possession by the lessee and taking over by the lessor which would lead to the inference of an implied surrender of the lease. 8. No doubt surrender may be either expressed or implied. The surrender can be oral if accompanied with delivery of possession. There can be an implied surrender by the relinquishment of the possession. The question of implied surrender has to be inferred from the conduct of the parties and the fact of relinquishment of the possession is most important factor which has to be seen by the Court. 9. In this regard the counsel of the appellant to prove his case that the plaintiff/respondent himself relinquished the possession of the shop1 in question, relied upon certain passages of his statement made before the trial court. I have gone into the statement of P.W. 1. 9. In this regard the counsel of the appellant to prove his case that the plaintiff/respondent himself relinquished the possession of the shop1 in question, relied upon certain passages of his statement made before the trial court. I have gone into the statement of P.W. 1. It does not indicate clearly that he had himself relinquished the possession of the shop in question and delivered the possession of the shop to the appellant. The burden of proof of the pleading regarding implied surrender was upon the appellantdefendant. The case of the plaintiff that he was the tenant of the shop in dispute and after the shop was demolished and reconstructed he was placed in possession thereof but after being threatened for eviction by the defendant he filed the suit in question and while the suit was pending he was forcibly evicted immediately after the interim order which was passed in his favour was vacated by the Court. The defendant in his written statement filed on 29th January, 1972 pleaded that on 4.9.1971 he was not tenant in the above shop and his father Puttu Lal was running the cloth shop. He died about six yearns ago. Thus, calculating from 1972 on backwards; it comes 1966 and then the shop was broken and the plaintiff no. 2, that is present respondent separated from the shop after removing the possession and thereafter the said shop remain vacant. From this statement, it appears that the surrender of the tenancy according to the defendant took place around 1966 and not on 4.9.1971. The plaintiff was also shattered by the evidence of Raj Kishore Agrawal, D.W. 1 who admitted that the plaintiff appellant was the tenant of the shop in dispute in the year 1971 when the notice of the Nagarpalika for demolishing the shop was served. In view of this statement, it cannot be concluded that the plaintiff/respondent had surrendered his tenancy in the year 1971. The first appellate court relied upon the report of the Advocate Commissioner which mentioned that the plaintiff/respondent was running the shop at the time of hi, inspection. No objection was filed against the said report and the same was confirmed by the trial Court. Thus, the appellant totally failed to make out a case that the plaintiff/respondent relinquished his tenancy and surrendered his tenancy b giving possession of the shop in question to the appellant. No objection was filed against the said report and the same was confirmed by the trial Court. Thus, the appellant totally failed to make out a case that the plaintiff/respondent relinquished his tenancy and surrendered his tenancy b giving possession of the shop in question to the appellant. Hence, the suthorities cited by the appellant's' counsel are of no avail. The learned counsel laid great stress upon the admission of P.W. 1 in which he stated that in the year 1971 the persons of the Ram Lila Committee did not give him any threat that they would evict him or demolished the shop; and T myself had taken away my belongings. It has come in evidence that a notice by the Nagar Mahapalika for demolition was already served, hence if the plaintiff had been and served and if he had taken away the belongings and vacated the shop knowingly that the building would be demolished and he would be given a shop after the building was reconstructed, this admission on his part could not be turned that he surrendered the shop in question. It was further argued that the lower appellate Court wrongly relied upon the Commissioner's report on the point he was in possession over the shop when he visited on spot. This part of the commissioner report was inadmissible inasmuch as it was not proved as the report should have been brought on record in the shape of evidence by the examination of the witnesses or recording the statement of the Commissioner. The report was subject to evidence and as the Commissioner was not produced before the Court to prove his report, hence the finding on that point by the first appellate court was vitiated and in this regard reliance was placed to several precedence that is 1983, Lucknow Civil Decisions, page15, Shital Ram v. Ram Nath and others, 1979 ALJ. Page 55. Learned counsel of the respondent cited 1975 RD, Page340, State of U.P. v. Smt.Ram Shree, 1980, Allahabad Civil Journal, page72, Smt. Shanti Devi v. S.N. Anad AIR 1976, Allahabad, page121 to support his contention that the report of the Commissioner is admissible in evidence under Order 26 rule 10 (2) CPC with does not contemplate proof of the report by examining the Commissioner as the above report was brought on record in the Judicial proceedings of the case. It was urged from the side of the respondent that the ordersheet dated 20.12.71 shows that steps were taken and the Commissioner was directed 10 submit report by 29.1.72. The order sheet dated 29.1.72. shows that on that date Sri Jagannath Prasad Misra, Advocate, was present in court on behalf of the defendant when the Commissioner applied for extension of time for submitting his report which was allowed by the court and time was granted upto 18.2.72 for filing the above report. From the order sheet dated 18.2.72 it transpires that the report of Commissioner was filed on that date in presence of the counsel of defendant and objections on the report were invited on 18.3.72. On the same date that is, on 18.3.72 when the report was confirmed, defendant filed his written statement. The defendant did not file any objection against the Commissioner's report before the trial court. He did not raise any objection even before the first appellate court regarding inadmissibility of the Commissioner's report and, therefore, the appellant is precluded from raising any objection against the said report for the first time in the second appeal. 10. I need not to express any opinion regarding admissibility or inadmissibility of the Commissioner's report particularly for the reason that the defence set up by the appellant did not find favour with the first appellate court and the first appellate court gave a definite finding that the appellant/defendant failed to prove the case that the plaintiff/respondent had surrendered his tenancy by implied surrender, exists no ground for interference by this Court on this technical aspect the matter. It was further argued on behalf of the appellant that as plaintiff himself admitted that he had taken away his belongings he is not entitled for the grant of decree of possession. It was argued that the plaintiff (was) never dispossessed by the appellant but he himself relinquished his possession and as such he was not entitled to get back the possession. As I have already pointed out that this admission on the part of the plaintiff that he had taken away his belongings does not mean that he had surrendered his tenancy. The appellants counsel further submitted that in para4 of the plaint, the respondent has averred that on 4th May, 1971 an agreement took place between him and the appellant regarding giving the said shop after reconstruction. The appellants counsel further submitted that in para4 of the plaint, the respondent has averred that on 4th May, 1971 an agreement took place between him and the appellant regarding giving the said shop after reconstruction. But in his statement on oath he stated on 4th September, 1971 such an agreement was orally entered between him us well as the appellant. He also drew the attention of this court towards another part of the statement made by the plaintiff in which he stated that the new shop was constructed in December, 1971. It was in the middle of December, 1971 that the shop was half built and during this period talk took place between him and Mahesh Kapoor. Undoubtedly there is no inconsistency in his statement to the above effect. It was vehemently argued by Sri S.K. Mehrotra, Advocate, appearing on behalf of the respondent that the mention of the date as 4th May, 1971 in para 4 of the plaint was nothing but a clerical error. In para 3 of the plaint, it was stated by the plaintiff that the notice from the Nagar Mahapalika, Faizabad was served on 4. 9. 1971 and then Sri Mahesh Kapoor, Chairman of the Nagar Palika expressed to the plaintiff/respondent and Mahavir Prasad that the demolition of the shop was essential in the public interest and safety. In view of this averment the subsequent averment in the plaint that the mutual oral agreement took place on 4.5.71 was incompatible. 11. As I have already indicated that there existed certain inaccuracy of minor contradictions in the statement of the plaintiff but while considering the statement of the witnesses, his statement has to be read as a whole and if there exists some contradictions here and there in the statement that would not affect the veracity of the statement. The contradictions mentioned by the appellant's counsel in the statement of the plaintiff are not at all fatal to the case of the plaintiff. Admittedly there were 2 tenants in the shop in question and both the tenants, namely, Jai Prakash and Mahavir Prasad Chaurasia. Both of them filed a suit for injunction and possession but later on a compromise on behalf of Mahavir Prasad Chaurasia was filed and he vacated the shop in question. Admittedly there were 2 tenants in the shop in question and both the tenants, namely, Jai Prakash and Mahavir Prasad Chaurasia. Both of them filed a suit for injunction and possession but later on a compromise on behalf of Mahavir Prasad Chaurasia was filed and he vacated the shop in question. This indicates that both the tenants were the tenants of the old building and when the notice for demolition of the building was served, a compromise was arrived at that in case they vacate the shop, after the demolition they would be given the similar accommodation. The compromise was filed on 10th March, 1973 and his name was deleted from the array of the plaintiffs. Had there been any intention to surrender the tenancy on the part of the plaintiff/respondent he would have given an application for dismissal of the aforesaid suit. No such application was ever made by the plaintiff/respondent. The very fact that even after dispossession from the shop in question during the pendency of the proceedings in the trial court in the above suit plaintiff/respondent continued the proceeding of the above suit, went in appeal against judgment and decree passed by the trial court and has been seriously contesting the above dispute right upto this Court. At no point of time there was any intention on the part of plaintiff respondent either to expressly or to impliedly surrender the tenancy or by mutual surrender. The first appellate after considering all the aspects of the case and the entire relevant evidence came to the conclusion that the appellant as well as Mahavir Prasad Chaurasia were running their shops and after the reconstruction of the shop they were given the possession. When they were threatened with the eviction they both filed the suit for permanent injunction and during the pendency of the suit respondent was evicted and a compromise on behalf of Mahavir Prasad Chaurasia was filed. The facts of the case indicate that at no point of, the respondent surrendered his tenancy right. In AIR 1971. Allahabad page16, Rehim Bux v. Mohd. Shafi, it was held that the leasehold rights will survive when the building is reconstructed hence the respondent has a right to get back the possession of the shop in question. 12. No substantial question of law arises in this second appeal which is accordingly dismissed with costs. (Appeal dismissed)