JUDGMENT
P.K. Misra, J.
1. Plaintiffs are the appellants against a confirming decision. The suit was for declaration of title, confirmation of possession and permanent injunction. According to the plaintiff’s case, the? disputed land measuring Ac. 0.02 decimals is a part of the plaintiffs’ land and had been so recorded in the previous Record-of-Rights. However, during the Hal Settlement, erroneously a reduced area was recorded in the names of the plaintiffs and the disputed portion lying towards western side of the plaintiffs’ homestead portion has been amalgamated within the defendants’ land.
2. The defendants in their written statement while denying the plaint allegations claimed that the disputed land is a part of their homestead. It was further pleaded that in case it is found on measurement that the disputed land was part of the plaintiffs’ land, plaintiffs’ right cannot be declared as the defendants had acquired title by adverse possession.
3. The trial Court dismissed the suit on the finding that the plaintiffs failed to prove that the disputed land was part of their other homestead land. In appeal, the decree of the trial Court having been confirmed, the present Second Appeal has been filed.
4. There is no dispute that during pendency of the suit, a Survey- knowing Commissioner had been deputed to find out if the disputed land was part of the plaintiffs’ land as per the previous Settlement Record- of-Rights. or as to whether the said land appertained to the defendants’ land. Even though a report had been submitted and had been accepted by the trial Court initially, in the judgment, the trial Court refused to place any reliance upon such report on the basis of several defects found in the report. The lower appellate Court also found that the report of the Survey-knowing Commissioner was not acceptable in view of the several errors. In the aforesaid background, the counsel for the appellants has submitted that since the question entirely depended upon the measurement by a Survey-knowing Commissioner, the lower appellate Court should have permitted the plaintiffs to take a Survey-knowing Commissioner.
The learned counsel appearing for the respondents submitted that there was no necessity for deputing a Survey-knowing Commissioner in view of other materials on record which had been accepted by the Courts below for negativing the case of the plaintiffs.
5. After hearing the counsels for parties and going through the pleadings as well as materials on record and the judgments of both the Courts below. I am convinced that in the present case, the matter is required to be remanded to the trial Court for fresh disposal to enable the plaintiffs to take out a Survey-knowing Commissioner for fresh measurement. The main point in the suit revolves round the question of identity of the disputed land. If it is found that the disputed land was part of the plaintiffs’ land, then the question of adverse possession raised by the defendants is required to be gone into and, on the other hand, if it is found that the disputed land was not part of the plaintiffs’ land, the suit is to be dismissed on that score, Since a Survey-knowing Commissioner had been deputed and the report was rejected only in the final judgment of the trial Court, in the interest of justice, a fresh Commissioner should have been deputed at the cost of the plaintiffs.
6. For the aforesaid reasons, I remand the matter to the trial Court for fresh disposal in accordance with law. A Survey-knowing Commissioner shall be deputed at the cost of the plaintiffs and thereafter, further opportunity may be afforded to both parties for adducing further evidence and the matter-should be disposed of in accordance with law as expeditiously as possible, preferably within a period of six months from the date of receipt of the L.C.R. The L.C.R. shall be sent back immediately. The parties are directed to appear before the trial Court on 30th April. 2001.
There will no order as to costs of the present appeal.