K PONNUMUTHAN Vs. K SATHIADAS

JUDGEMENT

(1.) THE question of law raised in this second appeal is whether the first appellate court is right in decreeing the suit relying upon the report and plan of a first Commissioner which has been supercede d by the trial Court by appointing a second Commissioner. My answer to this question is that basing the conclusion on the basis of report and plan prepared by the first Commissioner whose report and plan has been superseded by appointment of a second Commissioner with the consent of parties is contrary to the: provisions of Order 26, Rule 10 (3), C. P. C. If authority is needed it is available in Kunhi Kutti Ali. v. Md. Haji , A. I. R. 1931, Mad. 73. Since the first appellate court has accepted the report and plan of the first Commissioner which has been admittedly superseded by appointment of Second Commissioner, the judgment and the decree of the first appellate court are not sustainable. With a view to solve the disputes between the parties, I set aside the judgment and decree of the first appellate court as well as the trial court and remit back the matter to the trial court for appointment of a fresh advocate -Commissioner to locate the alleged, encroachment alleged to have been made by the defendant and determine the encroached area as claimed by the plaintiff, with the help of an approved Surveyor.

(2.) IN the result, both the second appeal and the memorandum of Cross - objection are allowed and the matter is remitted back to the trial court for fresh disposal in the line indicated above. No order as to costs.