KUMARI DEVI Vs. PRADEEP KUMAR

JUDGEMENT

(1.) Heard on admission and formulation of substantial question of law in this second appeal preferred by the appellant/plaintiff under Section 100 of the CPC against the impugned judgment and decree passed by the first appellate court affirming the judgment and decree by which the trial Court dismissed plaintiff's suit for removal of obstruction and thereafter, grant of decree for declaration of title and permanent injunction.

(2.) Mr. Raja Sharma, learned counsel for the appellant/plaintiff would submit that though the trial Court appointed a Commissioner in order to find out the obstruction on his way of entry and exit as the first appellate Court remanded the matter and directed for appointing a Commissioner who submitted his report on 27/12/2004 and the plaintiff preferred an objection which was rejected by the trial Court, still the Commissioner was not examined and she was not permitted to cross-examine him, therefore, plaintiff has suffered prejudice and the findings No. 1 and 2 of the trial Court are contradictory, hence, being perverse, the appeal involves substantial question of law for determination.

(3.) Initial judgment and decree of the trial court dismissing the suit of the plaintiff was set aside by the first appellate court directing appointment of Commissioner for spot inspection, and thereafter, accordingly the Commissioner was appointed and he submitted his report on 27.02.2004. The Commissioner's report states as under:-