Judgment B.L.Yadav, J. 1. This is defendants Second Appeal filed under Sec. 100 of the Civil Procedure Code (for short "the Code") in a suit filed by the plaintiff-respondents, praying therein that it be declared and decreed that the defendants have got no right to close the windows and ventilators and other openings in the north-eastern wall of the plaintiffs house and the defendants be further restrained from causing diminution in the light and air, to which the plaintiffs are entitled. The plaintiffs have been enjoying the same right for the last more than 12 years. The relief further was for removal of the wall or any other structure made by the defendants adjacent to the wall of the house of the plaintiffs. 2. The plaintiffs-respondents brought this suit with the averment that their grand father has purchased Holding No. 32 in Ward No. 2 in Mohalla Chowk Road under a registered deed of sale dated 19.5.1921 executed by Ram Charan Lal alias Bachu Babu who was the common ancestor of the defendants in favour of Godulal Jain, grand-father of the plaintiffs, who have raised three storeyed building. They have opened windows at the height of 10 ft. This was consistent with the convenant in the sale-deed itself, but the defendants-appellants are obstructing the passage of light and air by raising constructions, hence necessity for the present suit arose. 3. The case set up by the defendant appellants was a total denial of the plaintiffs case. It was averred that the plaintiffs-respondents have no right to open windows and ventilators in the northern side and they have not complied with the conditions of the sale as contained in the sale deed of 1921. The convenants in any case created in the sale-deed were in the nature of a licence and the same did not create any right in favour of the plaintiffs. The wall has correctly been raised by them. The plaintiffs are entitled to no relief. 4. The trial court after considering the documentary and oral evidence, decreed the suit by its judgment and decree dated 5.5.1987. The First Appeal preferred against that decree met the same fate. Against the aforesaid judgment and decree, the present Second Appeal has been filed by the defendants. 5. Mr. Uma Shankar Prasad, learned Counsel for the appellant urged that the report of the Pleader Commissioner (Ext. The First Appeal preferred against that decree met the same fate. Against the aforesaid judgment and decree, the present Second Appeal has been filed by the defendants. 5. Mr. Uma Shankar Prasad, learned Counsel for the appellant urged that the report of the Pleader Commissioner (Ext. 1) prepared under Order 39 Rule 7 of the Code was inadmissible in evidence and the courts below erred in relying upon the same. Only the report of a Pleader Commissioner appointed under Order 26 Rule 4 or 9 of the Code could be admissible as it is prepared in presence of both the parties. The findings of the courts below are perverse and are based on inadmissible evidence (Ext. 1). 6. The learned Counsel for the respondents, Shree R.B. Mahto on the other hand, urged that the report of the Pleader Commissioner appointed under Order 39 Rule 7 of the Code, was also admissible inasmuch as it was prepared during the pendency of an application of temporary injunction. It was, however, open to the defendants-appellants to get a fresh Pleader Commissioner appointed in pursuance of Order 26 Rule 4 or 9 of the Code. In view of Sec. 167 of the Evidence Act even if some inadmissible evidence was admitted, that would not be a ground for reversal of the judgment and decree, provided there was other evidence on record which could justify the findings. There is no substantial question of law involved. The Second Appeal is devoid of merits. 7. Having scrutinised the submissions of the learned Counsel for the parties, the points for consideration are whether the report of the Pleader Commissioner appointed under Order 39 Rule 7 of the Code could be looked into, particularly when he was not appointed under Order 26 Rule 4 or 9 of the Code and as to what is the effect of Sec. 167 of the Evidence Act, 1872 . 8. As regards the first point, suffice it to say that Order 39 Rule 7(1)(a) of the Code empowers the Court to make an order for detention, preservation and inspection of the property in dispute, and it further authorises the Court to pass an order in respect of other property in respect of which any question might arise therein. It means in respect of the property which is incidential to the property in dispute. It means in respect of the property which is incidential to the property in dispute. In view of this provision the Pleader Commissioner was appointed, who has submitted a report (Ext. 1 ) indicating that the constructions have been made by the defendants which are recent in time and age. Apart from the report of the Commissioner appointed under Order 39 Rule 4, there are other evidences, including the statements of P.Ws. 1 to 9 and D.Ws. 1 to 14 and Exts. 5/4 and 4 to 4/4 and the sale deed of the year 1921 that have been considered by both the courts below and Findings have been recorded that the plaintiffs were justified in opening their windows for light and air to the north consistent with the convenants in the sale-deed and that the convenants could not be said to be a licence, rather it was integral part of the sale-deed. 9. After considering the entire evidence on record, the lower appellate court in paragraph 15 of its judgment has stated that before it concludes, it has to consider a very important aspect which has been brought on record by the Pleader Commissioner who has proved his report (Ext. 1). It could not, therefore, be said that Ext. 1 was the only evidence relied upon by the lower appellate court. It was open to the defendants-appellants to have got appointed another Pleader Commissioner in pursuance of the provisions of Order 26 Rule 4 or 9 of the Code, but they failed to do so. An application could have been filed by the defendants-appellants for appointment of the Pleader Commissioner or a request could have been made to the learned Munsif or the learned District Judge so as to go personally, if it considered necessary on the spot and assess the position about the nature of construction of the wall, nature of the land and other geographical position appearing on the spot, but that was not done by the defendants-appellants. The report of the Commissioner (Ext. 1) under Order 39 Rule 4 of the Code is not the only evidence relied upon by the Courts below, rather other documentary and oral evidences have also been taken into account. The report of the Commissioner (Ext. 1) under Order 39 Rule 4 of the Code is not the only evidence relied upon by the Courts below, rather other documentary and oral evidences have also been taken into account. Findings of fact have been recorded by the courts below that the defendants have recently raised construction including the wall, which obstructs the light and air available to the plaintiffs-respondents through the windows. In that view of the matter, I do not find any substance in the first argument of the learned Counsel for the appellants. 10. The other question about Sec. 167 of the Evidence Act emanates from the first question itself. Rather it is just like making a negative approach to the submission of the Appellants. Even assuming that Ext. 1 was admitted in evidence and has been relied upon, but Sec. 167 of the Evidence Act contemplates the contingency. Ex Abundonti Cantela the statutory provisions of Sec. 167 of the Evidence Act be extracted: 167. No new trial for improper admission or rejection of evidence.--The improper admission or rejection of evidence shall not be ground of itself for a new trial or reversal of any decision in any case. If it shall appear to the Court before which such objection is raised that, independently of the evidence objected to and admitted, there was sufficient evidence to justify the decision, or that if the rejected evidence had been received, it ought not to have varied the decision. 11. This Section is substantially consistent with modern English Rule that a new trial shall not be granted on the ground of improper admission or rejection of the evidence unless in the opinion of the Court some substantial wrong or miscarriage of justice has been occasioned thereby. This Sec. 167 of the Evidence Act in substance is one of the many applications of that principle, which is at the root of modern legislation respecting judicial procedure, namely, that if legal technicalities cannot be wholly excluded, they shall at least be prevented from materially impending the course of judicial proceedings, and the attainment of that substantial justice which is their only aim, (See Woodroffe, 9th Edn. 1051). Other applications of this principle are to be found in Sec. 99 of the Code and in Sec. 537 of the (Old) Criminal Procedure Code and Sec. 464 and 465 of Cr.P.C. 1973. 1051). Other applications of this principle are to be found in Sec. 99 of the Code and in Sec. 537 of the (Old) Criminal Procedure Code and Sec. 464 and 465 of Cr.P.C. 1973. Sec. 99 of the Code is to the effect that no decree shall be reversed or modified for error or irregularity not affecting merits or jurisdiction. The present Sec. 167 of the Evidence Act in fact contains similar provisions that no decree shall be varied or judgment reversed simply on the ground of improper admission or rejection of any evidence, if it could be shown that irrespective of the evidence admitted or rejected, there was other sufficient evidence on the record which, if taken into account, warrants findings recorded by the courts below. 12. In the instant case I have perused the judgment, and as indicated above, as many as 9 witnesses have been examined on behalf of the plaintiffs and 12 witnesses have been examined on behalf of the defendants. There were other evidences also including the sale deed, which have been considered and findings have been recorded by the courts below that the plaintiffs were entitled to open their windows at a height.of 10 ft. in the northern side, which was consistent with the covenant, which was not a licence, rather a right emanating from the sale deed. In view of the provisions of Sec. 167 of the Evidence Act as there was other sufficient evidence which could justify the findings recorded by the courts below, even if Ex. 1 was assumed to be incorrectly admitted, that would not make any difference. 13. In view of the premises aforesaid, I do not find any merit in this appeal and the same, is accordingly, dismissed, but without any order as to costs. A cross objection was also filed on behalf of the respondents, which is also hereby dismissed.