SURENDRA PRASAD SINGH Vs. MUNGESHWAR PASI

JUDGEMENT

(1.) THIS appeal is directed against the judgment and decree of the first appellate Court dated 22nd February, 1986 and 14th March, 1986 respectively. Before I refer to the point of law on the basis of which this appeal was admitted, it would be worthwhile to refer to the relevant facts.

(2.) THE facts, in a nut -shell, are that the plaintiffs of the Title Suit No. 119 of 1968 are appellants here. They had filed the suit for removal of encroachment from plot No. 821, Plot Nos. 822 and 823 belonged to the defendants and they had allegedly encroached upon plot No. 821. The trial Court by its judgment dated 16th February 1979, decreed the suit holding that there was encroachment by the defendant -respondents over the land of appellants over plot No. 821 on the basis of Survey Knowing Pleader Commissioners report. However, the appellate Court, referring to the report of the Pleader Commissioner, held that since this Commissioner was not a survey knowing Advocate, the report was not reliable. It is the case of the appellants before this Court that the first appellate Court committed an error of record by referring to the Survey Knowing Commissioners report relying on which the trial Court had decreed the suit and based his finding on the report of a Pleader Commissioner who was just deputed to report on the physical features of the land in dispute.

(3.) I find that by order dated 10th April, 1987, this Court, after admitting the appeal, formulated the question of law to be considered in this appeal and that was to the effect whether the first appellate Court had committed an error of record by referring to the report on the basis of which the trial Court had based its finding. So before this Court, there is the only question of law whether the first appellate Court committed an error of record by referring to the report on the basis of which the trial Court decreed the suit.