JUDGMENT : 1. In this Civil 2nd Appeal, the appellants have assailed the validity of the judgment and decree dated 31.12.2012 passed by the learned Principal District Judge Kishtwar whereby the appeal filed by the appellants/defendants against the judgment and decree dated 01.10.2003 passed by the learned Sub-Judge (CJM) Kishtwar decreeing the suit of the respondent/plaintiff against the appellants/defendants has been upheld and operative part thereof has been modified and further a fresh second decree has been passed against the appellants with costs. 2. The facts leading to filing of this appeal briefly stated are that the father of appellant No.1 and the respondent herein namely Late Sh. Sham Lal Thakur, since deceased, was originally a resident of Village Joshaana-Saroor Teshil & District Kishtwar, where he had a dwelling house and ancestral landed properties and he had four sons namely Mohan Lal, Munshi Ram, Prehlad Bhagat and Ram Krishan. Besides the ancestral immovable/movable properties including the residential house building situated at Village Joshaana-Saroor belonging to the late father of the appellant No.1 and the respondent herein namely Sh. Sham Lal Thakur, the deceased father had also self acquired various lands at Kishtwar including a piece of land comprising of Khasra No.522 situated at Village Hidyal-Kishtwar wherein he had also constructed a residential house building with vacant land. It is further contended that in the year 1968, the deceased father of the appellant and the grandfather of appellant Nos.2 to 4 (sons of the appellant herein) during his life time orally partitioned his entire landed properties situated at Kishtwar as well as at Joshaana Saroor and adjoining places amongst his all the four sons in the ration of 1/4th share each, who are since then in possession, use and occupation of their respective shares. However, insofar as the two residential houses, one situated at Hidyal-Kishtwar and the other one situated at village Joshaana-Saroor (Kishtwar) were concerned, the same fell into the exclusive shares of appellant No.1 and the respondent herein. Insofar as other two sons, namely Prahlad Bhagat and Ram Krishan, were concerned, they were given one plot each in the land comprising of Khasra no.522 at village Hidyal-Kishtwar i.e., adjacent to the aforesaid residential house of the appellant, who subsequent to the said oral partition effected in the year 1968, themselves constructed their own houses over the said plots and are residing therein since then. It is reiterated here that all the four brothers got equal shares of 1/4th each in all the lands situated at both places i.e village Joshaana-Saroor as well as at Hidyal-Kishtwar excepting the two residential houses, as stated hereinabove and they are duly reflected as owners of 1/4th shares in the landed properties in the revenue records. It is further contended that right from the year 1968 all the four brothers including the appellant No.1 as also the respondent including the other two brothers are in the use and enjoyment of their respective 1/4th shares in the land situated at Kishtwar as also at Joshaana Saroor, whereas the appellant is in exclusive possession of the residential house at Hidyal-Kishtwar as owner thereof and the respondent is in possession of the residential house at village Joshaana-Saroor as owner thereof. It is further contended that in the year 1989 the State Government (in the Fisheries Department) acquired 02 kanals and 03marlas of land out of khasra No.96 measuring 04 kanals and 18 marlas, situated at Kishtwar, which land had fallen in the share of the appellant No.1 and who was in occupation and cultivating possession thereof. A compensation of Rs.40,000/- was granted therefor which became the subject matter of dispute between the respondent and other two brothers, namely, Prahlad Bhagat and Ram Krishan on one side and the appellant on the other side which lasted up to this Court. In this backdrop, the respondent herein started nourishing ill-will against the appellant and with the active connivance of the other two brothers and he came to Hidyal-Kishtwar in the month of September, 1992 and by committing the criminal trespass he forcibly occupied one room and one bath room of the appellant’s house at Hidyal-Kishtwar. Appellant filed a criminal complaint against the respondent in the Court of learned Judicial Magistrate at Kishtwar against the respondent titled Mohan Lal vs Munshi Ram & ors for offences u/Ss 447, 427,323 RPC. Appellant filed a criminal complaint against the respondent in the Court of learned Judicial Magistrate at Kishtwar against the respondent titled Mohan Lal vs Munshi Ram & ors for offences u/Ss 447, 427,323 RPC. In order to counter blast the case of the appellant, the respondent herein on 21.09.1994 filed a civil suit titled Munshi Ram vs Mohan Lal and others against the appellants herein which was transferred to the Court of learned Sub-Judge Kishtwar on 01.10.1994 for grant of decree for permanent prohibitory injunction thereby restraining the defendants from demolishing the room No.6 and further restraining them from interfering into his purported possession over room nos.2,3 & 6 and courtyard/compound (sehan) and also from raising any construction thereon. On motion of the respondent (plaintiff) the trial Court appointed Sh. R.K. Goswami Advocate as a Commissioner on 23.09.1994 for conducting the spot inspection and submitting the status report. The Commissioner so appointed while exceeding his brief proceeded to the spot on 24.09.1994 and also record the evidence of the witnesses without administering any oath and submitted his report on 05.12.1994 along with the site plan showing therein that the respondent/plaintiff was in possession of one room kitchen; one room; one cattle room and also showed the alleged room in dispute as Pooja Room. Strangely, the commissioner in his aforesaid report also disclosed that as per the oral statements of the witnesses “that partition has taken place and Munshi Ram (respondent/plaintiff) is in peaceful possession/occupation (should read as “possession”) of his share. The dispute if at all is there it is upon the Pooja Ram actually falls in the share of Munshi Ram and Mohan Lal forcibly occupied besides.” It is further stated that Munshi Ram in his statement dated 23.09.1994 never deposed before the Commissioner that he had been dispossessed. The dispute was with regard to the said house only as the respondent (defendant No.1) claims that the same has as a whole fallen into his share only whereas this house was partitioned in the presence of the witnesses and by virtue of the partition deed portion of house comprising of one cattle room and three rooms had fallen in his share. On the contrary the consistent stand of the applicant No.1 in his statement before the Commissioner, his two written statements filed in the suit; his statement recorded as his own witness, memorandum of appeal filed before the 1st appellate Authority and even the present Memo of Civil Second Appeal, has been that all the landed properties both at Joshaana-Saroor and Kishtwar as well as the two residential house were orally partitioned by the deceased father namely Sh. Sham Lal Thakur way back in the year 1968 whereby the lands were divided into 1/4th share each whereas the house at Hidyal-Kishtwar had fallen into the share of the appellant No.1 exclusively whereas the house at Joshaana Kishtwar had fallen into the share of respondent Munshi Ram exclusively whereas two separate plots in land at Kishtwar falling under khasra No.522 were given to the remaining two brothers for constructing their residential houses. The respondent/plaintiff based his suit on the plea raised in para 1 of the plaint that as per the site plan enclosed with the plaint he is the owner in exclusive possession of room nos.2, 3, 6 and the compound of the house being part of the house building of the appellant No.1 who is his elder brother, situated at Hidyal Kishtwar and the defendants had started demolishing and raising construction over room no.6. Appellants (defendants) filed their first written statement on 10.10.1995 thereby resisting the suit of the respondent and reiterating the stand that the properties had been partitioned by their late father in the year 1968 and the house at Hidyal-Kishtwar had fallen into the share of appellant no.1 exclusively, which is based on truth and the fact. However, before the issues could be framed the respondent/plaintiff filed an application for seeking to amend the said suit on the basis of the false report and the site plan he had managed to obtain and get filed through the Commissioner to the effect that the appellant no.1 had dispossessed him from room no.6 and forcibly taken over the possession, which he has admitted in his statement. The application for amendment of the plaint was allowed vide order dated 24.07.1997. The application for amendment of the plaint was allowed vide order dated 24.07.1997. The trial Court entertained the amended plaint and written statement being the second one was filed by the appellants/defendants 19.11.1997 reiterating the same plea of the actual partition having been effected orally by their late father in the year 1968 besides objecting to the legality and acceptance of the report of the Commissioner as also resisting the maintainability of the suit of the plaintiff on a variety of grounds. However, it is submitted that the objection raised with regard to the report of the Commissioner was never addressed to decide by both the courts below rather the same has been acted upon and relied upon as a piece of evidence notwithstanding the settle position of law that the Commissioner cannot be appointed for creating evidence for either of the parties. 3. The learned Sub-Judge Kishtwar proceeded to frame as many as seven issues in the suit vide order dated 17.06.1998 by completely ignoring the pleadings especially the written statement of the appellants/defendants. These issues read as under: 1. Whether the plaintiff is owner in possession of room no.2&3 of suit house at present along with compound? OPP 2. Whether the plaintiff was in possession of room no.6 of suit house and was dispossessed from the same during the pendency of the suit? OPP 3. Whether the defendants have forcibly dispossessed the plaintiff from room no.6 of suit house which is at present in possession of defendants? OPP” 4. Whether the defendants are interfering in the peaceful possession of plaintiff over room no.2&3? OPP” 5. Whether the Amended suit of plaintiff is not maintainable? OPD” 6. Whether the suit of plaintiff has not been properly valued for the purpose of court fee and jurisdiction. If so, what is its effect on the suit? OPD 7. Relief. 4. Thus, it be seen that no issue with regard to the partition of all the properties i.e the landed properties and the two residential houses including part of main house i.e. the suit house at Hidyal-Kishtwar, having been effected in the year 1968 by the father of the appellant no.1 and the respondent was framed by the trial court notwithstanding the specific plea repeatedly taken by the appellants. 5. 5. The learned Sub Judge Kishtwar vide judgment/decree dated 01.10.2003 decreed the suit of the respondent/plaintiff against the appellants by holding that:- “Accordingly, it is ordered that the defendants shall forbear from dismantling the room no.6 situated in Abadi Deh at Hadyal which is in the possession and occupation of plaintiff subject matter in dispute. Also the defendants shall restrain from raising any construction or making any change in it. Further the defendants are also restrained not to interfere in room nos.2&3 and an order of ejectment is also passed against the defendants. No order as to costs. The parties shall bear their own costs. With these observations, the suit of the plaintiff is disposed of. Let it be consigned to records after its due completion, after the statutory period for filing an appeal is over. The office shall prepare the decree sheet accordingly.” 6. After the minute scanning of evidence put forth by the parties to the lis, the parties revolve around only three points, which are as under:- (i) Whether the parties to the suit are real brothers and thus entitled to the share as coparceners in the ancestral property. (ii) Whether the partition of the ancestral house and the landed property of the parties situated at Joshaana and Hadyal stand effected during the life time of their father in the year 1968 as put by the defendant or in the year 1989 as put by the plaintiff. (iii) Whether the plaintiff is actually putting up at Joshana ever since the partition effected by the father of the parties to the suit as put by the defendant and his voter list including chowkidara report and also the ration card is of Joshaana and not of Hadyal as put by the defendant or to the contrary to it, the plaintiff is putting up at in the ancestral house at Hadyal for the last 10/12 years as and has got his ration card, voter list and Chowkidara report of Hadyal. 7. Being aggrieved of the aforesaid judgment and decree dated 01.10.2003 of the learned Sub-Judge Kishtwar, the appellants herein preferred an appeal in the Court of learned District Judge, Kishtwar on a number of grounds, as is discernible from the memorandum of appeal. 7. Being aggrieved of the aforesaid judgment and decree dated 01.10.2003 of the learned Sub-Judge Kishtwar, the appellants herein preferred an appeal in the Court of learned District Judge, Kishtwar on a number of grounds, as is discernible from the memorandum of appeal. However, the learned Principal District Judge Kishtwar vide judgment and decree dated 31.12.2013 without considering and appreciating all the grounds urged in support thereof upheld the findings of the trial court and while dismissing the appeal with costs, proceeded to modify the impugned judgment and decree and further decreed the suit afresh by passing a second decree in favour of the respondent-plaintiff and against the appellants-defendants in the following manner: “Hence, in view of the discussion made hereinabove, I do not find any illegality or infirmity as far as finding recorded by the court below on issues and consequently the result of the suit, but instead of decree for ejectment for room no.6 it should be decree for restoration of possession and therefore, operative part of the impugned judgment and frame of decree needs slight modification to avoid confusion and multiplicity of litigation though result is the same. The appeal is as such dismissed with costs and consequently a decree for possession of room no.6 with or without structure raised thereon i.e either the defendants/appellants may remove the structure raised on room no.6 and handover possession to the plaintiff/respondent or the defendants/appellants may handover the possession of structure raised on room no.6 also without claiming cost of the same and further decree of permanent prohibitory injunction restraining the defendants/appellants from causing any interference in room nos.2,3 &6 as described in the plaint is passed in favour of the plaintiff/respondent and against the defendants/appellants. Decree sheet be prepared accordingly and be made part of the file. Lower court record be sent back with copy of this judgment, an appeal file be consigned to records after due compilation.” 8. Decree sheet be prepared accordingly and be made part of the file. Lower court record be sent back with copy of this judgment, an appeal file be consigned to records after due compilation.” 8. The learned District Judge Kishtwar, however, considered only four points/grounds out of the memo of appeal as urged by the appellant, namely: (a) Court below did not frame issue in accordance with the pleadings notwithstanding the specific plea of family partition have been effected in the year 1968 by the deceased father of the plaintiff and the defendant no.1 during his life time, whereby all the properties were partitioned and the suit house had fallen to the exclusive share of the defendant no.1, thereby depriving the defendants of their right to lead the evidence. (b) Trial Court had considered only part statements of the witnesses and mis-appreciated their evidence. No oral as well as documentary evidence had been brought on record to prove partition/settlement alleged to have been effected in the year 1989 between the plaintiff and the defendant no.1 and other two brothers and Panchnama had not been produced and only the basis of the map/site plan not signed by the defendant no.1 the suit had been decreed. (c) Trial Court had granted relief which was not sought by the plaintiff, who instead of filing partition suit had filed a suit for injunction which cannot be granted against co-sharer. (d) Trial Court had not appreciated properly the evidence of the plaintiff. 9. It is further contended that while dismissing the appeal filed by the appellants against the impugned judgment/decree, the 1st Appellate Court has committed another serious mistake of law when it on the one hand maintained the impugned judgment and decree by modifying the same from decree for ejectment to the decree for possession but further exceeded its powers to pass a fresh decree itself also, thus thereby giving additional and more relief to the respondent that what was given to him by the trial Court and that too without he having appealed against the same, thus passing two decrees in one suit and that too with costs. 10. 10. The present Civil Second Appeal involves the following substantial questions of law, which are required to be formulated by this Court for its determination:- (A) Whether the 1st Appellate Court below while dismissing the appeal of the appellants against the impugned judgment and decree of the trial Court could have legally modified the same by substituting “decree for possession” for “decree for ejectment”, instead of allowing the appeal and dismissing the suit, especially when the respondent/plaintiff was neither in appeal against the same nor he had applied for such modification.? (B) Whether the 1st Appellate Court after modifying the impugned judgment and decree of the trial Court impugned by the defendants and maintaining the same could pass a fresh and second decree on the same subject matter of lis and grant additional relief than has been granted by the trial Court, without first setting aside the decree of the trial Court? Further which decree out of the two decrees, passed by the trial Court and appellate Court, will be executable and binding upon the parties to the lis, when both decrees are final and not preliminary and final decrees, where the first one merges into the final decree? (C) Whether the 1st Appellate Court was competent in law to correct the legal errors and infirmities concededly noticed in the impugned judgment and decree still dismiss the appeal instead of allowing the same? (D) Whether the map in question bearing signatures of only three brothers and not the fourth one i.e., the defendant no.1 without scriber having scribed and dated it and further without all the panches/witnesses having signed the same and without producing and proving the Panchnama/Settlement/Partition deed, could be treated and substituted as a family settlement regarding the partition of the ancestral property by metes and bounds, without the detailed description but showing the alleged outer dimensions only, can be treated as a Deed of Family Settlement/Partition and whether judgment and decree can be based thereon by drawing the inference that the partition has been effected, especially when other properties are admitted to be joint and not having been partitioned, especially when the objection with regard to its admissibility recorded at the time of exhibiting the same to witness has not been decided either by the trial Court or the first appellate Court? (E) Whether in absence of specific pleading of family settlement/partition effected in the year 1989 qua the suit house by the respondent/plaintiff, and in view of the specific issue to that effect whether oral and documentary evidence could be led to prove and establish the partition and consequential share in the residential house in his favour by way of ownership and possession and whether such evidence is legal and admissible and whether the impugned judgment and decrees are sustainable in the eyes of law on that basis? (F) Whether the trial Court as also the appellate court were bound under law to frame the specific issue regarding the oral partition having been effected by the father in the year 1968 in respect of all the properties including the suit house where under the same had fallen exclusively into the share of the Appellant/defendant no.1, as was specifically pleaded in the written statement? (G) Whether the omission to frame the vital issue emanating from the pleading i.e., the written statement can be treated as an omission not vitiating the trial on the alleged reasoning that the party knew his case and had adduced the evidence and cross-examination the witnesses of the other side and hence not calling for interference from the superior court of Appeal? (H) What is the duty of the civil Court when the valuation of the subject matter is disputed and what is the legal procedure to be adopted for determination of the market value of the subject matter for the purposes of the payment of the court fee? (I) Whether the Commissioner can be appointed for creating the evidence for the parties? And what is the evidentiary value of the Report, Statements recorded and the Map prepared by him and to what extent the same can be used and relied upon by the civil Court while passing the decree? (I) Whether the Commissioner can be appointed for creating the evidence for the parties? And what is the evidentiary value of the Report, Statements recorded and the Map prepared by him and to what extent the same can be used and relied upon by the civil Court while passing the decree? (J) Whether the findings of fact recorded by the trial Court as well as the 1st Appellate Court suffer from the vice of legal perversity as all the findings are based on no legal and admissible evidence because while reaching to such findings the relevant admissible evidence has not been taken into consideration in as much as settled legal principles have not been applied in appreciating the evidence ink as much as the evidence has been misread and mis-appreciated and this in itself give rise to a substantial question of law? (K) Whether concurrent findings of the two Courts below call for the interference from this Hon’ble Court, as all the findings suffer from the recognised exceptions and the said rule is not an absolute one when the present case falls in the exceptions which is the trite law that a finding of fact may give rise to a substantial question of law? 11. This Court vide order dated 04.04.2013 issued notice to respondent and stayed the execution of the impugned judgments and decrees. 12. Heard learned counsels for the parties. Counsel for appellants has reiterated the grounds taken in memo of 2nd appeal; he has also cited 2012 (8) SCC148 case titled UOI v. Ibrahim ud Din; 2010 (11) SCC483 case titled Bharatha Maths v. R.Vijay Renganthan; 2013 (7) SCC 490 case titled M.B. Ramesh v K.M. Veerjeurs. Whereas counsel for respondent has supported the judgments and has argued that no substantial question of law have arisen. 13. I have given my thoughtful consideration to whole aspects of matter. I have perused the records of two courts below for limited question of ascertaining as to whether there is any substantial question of law as framed in memo of appeal, which requires deliberation. 14. Bare perusal of these substantial questions of law formulated in memo appeal and evidence on record, it is evident that these are not at all substantial questions of law, but are question of facts. Questions of facts cannot be treated as substantial question of law, so cannot be re-appreciated in this appeal. 14. Bare perusal of these substantial questions of law formulated in memo appeal and evidence on record, it is evident that these are not at all substantial questions of law, but are question of facts. Questions of facts cannot be treated as substantial question of law, so cannot be re-appreciated in this appeal. The proper test for determining whether a question of law raised in the case is substantial would, mean whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by apex court or this court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. It also means question of law on decision in lis between the parties. Substantial question of law also means that such question must be debatable, not previously settled by law of land or binding precedent. 15. Further in order to see perversity in judgments, I have appreciated the evidence of trial court and finding arrived by both courts below for limited purpose in this regard. 16. First question raised by counsel for appellants in memo of substantial questions of law is that, 1st Appellate Court below while dismissing the appeal of the appellants against the impugned judgment and decree of the trial Court could not have legally modified the same by substituting “decree for possession” for “decree for ejectment”. 17. I have gone through this aspect of matter and also gone through the judgments and decree framed thereon. Decree is formal expression of adjudication given by a court with regard to determination of right of any parties to case, as defined in section 2(2) of C.P.C. Trial court by passing the judgment has mentioned in concluding para that “Further the defendants are also restrained not to interfere in room nos.2&3 and an order of ejectment is also passed against the defendants.” Whereas 1st appellant court while dismissing the appeal has concluded that “ but instead of decree for ejectment for room no.6, it should be decree for restoration of possession and therefore, operative part of the impugned judgment and frame of decree needs slight modification to avoid confusion and multiplicity of litigation though result is the same” 18. From the perusal of judgment of 1st Appellant Court below, it is evident that court below has not modified the judgment/decree, but has corrected the words of trial court in judgment while granting reliefs, in order to avoid confusion and multiplicity of litigation. Hence there is no substance in argument of counsel for appellant. 19. Another point raised in memo of substantial questions of law is that, whether the map in question relied by court below, bearing signatures of only three brothers and not the fourth brother and without any date, could be treated and substituted as a family settlement regarding the partition of the ancestral property by meets and bounds. 20. I have considered this aspects of matter. From the perusal of trial court file, I find that that map EXPW-RB, which has been relied by plaintiff bears signatures of three brothers except appellant no.1 herein (now deceased); there is endorsement on this map thereby showing it as PLAN for partition of house and lands in Khasra no. 522 in village Hidyal among four brothers as mentioned above in different colour; the name of appellant no.1- Mohan Lal is among four brothers. 21. During trial beside plaintiff, PWs Parlhad Bhagat and Ram Krishan, other two brother have admitted the contents of this map and have categorically stated that partition took place among four brothers; and ancestral house stands partitioned in 1989 between plaintiff and defendant-Mohan Lal equally . They have also stated that subject matter in dispute has come in share of plaintiff. This finding of facts has been upheld by 1st appellant court. The statements of two real brothers in this regard cannot be belied, because they would never narrate wrong facts with regard to partition of properties among them. 22. Further one independent witness PW Sewa Ram has also supported this fact. Further original map on which plaintiff has relied his case during trial is also in file. In terms of section 64 of Evidence Act, documents must be proved by primary evidence. Best evidence, rule as to proof of document is document itself; when the map has been taken in evidence without any objection as to proof/admissibility, such an objection cannot be allowed to be raised first time in appeal and especially in 2nd appeal. When the map has been marked exhibits without any objection, the appellant cannot subsequently object to their admissibility. When the map has been marked exhibits without any objection, the appellant cannot subsequently object to their admissibility. There is thus no substance in this ground also. 23. Next it has been argued that in absence of specific pleading of family settlement/partition effected in the year 1989 qua the suit house and in view of the non farming of specific issue to that effect, the oral and documentary evidence could be led to prove and establish the partition and consequential share in the residential house in his favour by way of ownership and possession. 24. Law is settled that issues are framed under order 14 rules 1 C.P.C with regard to real matter in controversy of facts and laws between parties, on which court is asked to give judgment. 25. After going through the pleadings and issues drafted by trial court, it is evident that no specific issue with regard to partition effected between plaintiff and defendant (two brothers) has been framed. But from the perusal of plaint it is evident that appellants /defendants were knowing real controversy and have produced evidence with this regard. So non framing of specific issues has not caused any prejudice to them. Hon’ble the Supreme Court in case titled Bachhaj Nahar vs Nilima Mandal & another, reported in (2008) 17 SCC 491 , held as under:- “11. The High Court has ignored the aforesaid principles relating to the object and necessity of pleadings. Even though right of easement was not pleaded or claimed by the plaintiffs, and even though parties were at issue only in regard to title and possession, it made out for the first time in second appeal, a case of easement and granted relief based on an easementary right. For this purpose, it relied upon the following observations of this Court in Nedunuri Kameswaramma v. Sampati Subba Rao [ AIR 1963 SC 884 ]: "No doubt, no issue was framed, and the one, which was framed, could have been more elaborate, but since the parties went to trial fully knowing the rival case and led all the evidence not only in support of their contentions but in refutation of those of the other side, it cannot be said that the absence of an issue was fatal to the case, or that there was that mistrial which vitiates proceedings. We are, therefore, of opinion that the suit could not be dismissed on this narrow ground, and also that there is no need for a remit, as the evidence which has been led in the case is sufficient to reach the right conclusion." But the said observations were made in the context of absence of an issue, and not absence of pleadings. The relevant principle relating to circumstances in which the deficiency in, or absence of, pleadings could be ignored, was stated by a Constitution Bench of this Court in Bhagwati Prasad vs. Shri Chandramaul - AIR 1966 SC 735 : "If a plea is not specifically made and yet it is covered by an issue by implication, and the parties knew that the said plea was involved in the trial, then the mere fact that the plea was not expressly taken in the pleadings would not necessarily disentitle a party from relying upon if it is satisfactorily proved by evidence. The general rule no doubt is that the relief should be founded on pleadings made by the parties. But where the substantial matter relating to the title of both parties to the suit was touched, tough indirectly or even obscurely in the issues, and evidence has been led about them then the argument that a particular matter was not expressly taken in the pleadings would be purely formal and technical and cannot succeed in every case. What the Court has to consider in dealing with such an objection is : did the parties know that the matter in question was involved in the trial, and did they lead evidence about it? If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. If it appears that the parties did not know that the matter was in issue at the trial and one of them has had no opportunity to lead evidence in respect of it, that undoubtedly would be a different matter. To allow one party to rely upon a matter in respect of which the other party did not lead evidence and has had no opportunity to lead evidence, would introduce considerations of prejudice, and in doing justice to one party, the Court cannot do injustice to another." (emphasis supplied) The principle was reiterated by this Court in Ram Sarup Gupta (dead) by LRs., vs. Bishun Narain Inter College [ AIR 1987 SC 1242 ]: "It is well settled that in the absence of pleading, evidence, if any, produced by the parties cannot be considered. It is also equally settled that no party should be permitted to travel beyond its pleading and that all necessary and material facts should be pleaded by the party in support of the case set up by it. The object and purpose of pleading is to enable the adversary party to know the case it has to meet. In order to have a fair trial it is imperative that the party should state the essential material facts so that other party may not be taken by surprise. The pleadings however should receive a liberal construction, no pedantic approach should be adopted to defeat justice on hair splitting technicalities. Sometimes, pleadings are expressed in words which may not expressly make out a case in accordance with strict interpretation of law, in such a case it is the duty of the court to ascertain the substance if the pleadings to determine the question. It is not desirable to place undue emphasis on form, instead the substance of the pleadings should be considered. Whenever the question about lack of pleading is raised the enquiry should not be so much about the form of pleadings, instead the court must find out whether in substance the parties knew the case and the issues upon which they went to trial. Once it is found that in spite of deficiency in the pleadings, parties knew the case and they proceeded to trial on those issue by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal." [emphasis supplied] . 26. Once it is found that in spite of deficiency in the pleadings, parties knew the case and they proceeded to trial on those issue by producing evidence, in that event it would not be open to a party to raise the question of absence of pleadings in appeal." [emphasis supplied] . 26. Next question in memo of substantial questions of law taken is that whether the Commissioner can be appointed for creating the evidence for the parties and what is the evidentiary value of the Report, Statements recorded and the Map prepared by Commissioner. 27. I have gone through this aspect of matter. Commissioner is appointed under Order 26 Rule 9 C.P.C. for local investigation for the purpose of elucidation of any matter in dispute. Report is required to be submitted by Commissioner in terms of order 26 Rule 10 C.P.C. 28. The provision of Order 26 Rules 9 and 10 Civil Procedure Code would be just and proper to examine them in extenso. The same are in the following words:- "Commissions to make local investigations. 9. In any suit in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute, or of ascertaining the market value of any property, or the amount of any mesne profits or damages or annual net profits, the Court may issue a commission to such person as it thinks fit directing him to make such investigation and to report thereon to the Court; Provided that, where the State Government has made rules as to the persons to whom such commission shall be issued, the Court shall be bound by such rules. Procedure of Commissioner. 10(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence together with his report in writing signed by him, to the Court. Procedure of Commissioner. 10(1) The Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence together with his report in writing signed by him, to the Court. 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 reports 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, on as to his report, or as to the manner in which he has made the investigations. (3).........." 29. In present case, local Commissioner was appointed on the application of plaintiff/respondent on 23.9.1994, wherein he alleged that appellants have violated court order of status quo. Commissioner visited the spot and made a report on 5.12.1994 stating that appellants have forcibly occupied both rooms. Thereafter amendment of suit with relief of possession of two rooms was allowed. Appellants/ defendants have not filed any objections against this report. Even the said commissioner has been examined by plaintiff/respondent. So both the court below were right in relying upon the finding of Commissioner. 30. It has also been held by Delhi High Court in the case reported as Kenneth Loyal @ Manmohan Singh Loyal Vs. Sh. Vipin Vinod Diwan & Ors. 2011 (123) DRJ 368 that the report of Local Commissioner can be read in evidence without examination of the Local Commissioner if no objections were filed to the report of the Local Commissioner. 31. I have gone through law cited by counsel of appellants; these are not applicable in present set of circumstances, because in all these, it has been held that there is no prohibition in entertaining the second appeal on question of fact provided court is satisfied that finding of courts below were vitiated by non consideration of relevant evidence or by showing erroneous approach in the matter and finding is perverse. As already discussed, there is no perversity of law and facts in judgments of courts below. 32. No such substantial question of law has arisen. There is no merit in this appeal. Appeal along with pending applications are dismissed.