JUDGMENT
S.N. Pathak, J.
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 Commissioner’s 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 Commissioner’s 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.
4. On perusal of the lower Court records, I find that one survey knowing Pleader Commissioner was appointed by the Court and he submitted his report dated 7th July, 1971. The order-sheet dated 10th July, 1971 of Title Suit No. 119 of 1968 shows that the report of the Pleader Commissioner was received. The earlier order dated 22nd December, 1970 shows that the Sri Giriwar Dayal was appointed the Survey Knowing Commissioner concerned. The order-sheet dated 1st November, 1971 shows that there was no objection to the report submitted by Sri Giriwar Dayal and, hence, this report was confirmed. The report of Sri Giriwar Dayal, Survey Knowing Commissioner is on the record of the lower Court. The judgment of the lower Court dated 16th February 1979 shows that lower Court in its judgment at Paragraph 3 referred to the Exhibits filed by the plaintiff-appellants and, in this connection, referred to Ext-2 which was Pleader Commissioner’s report who was examined as P.W. 6. Again the lower Court, while discussing issue No. 3 at Paragraph 9, considered the report of Survey Knowing Pleader Commissioner and held that as per his report, the defendants had encroached upon plot No. 821 and the encroachment was 34 links north to south and 50 links east to west. On the basis of this report, the trial Court decreed the suit of the plaintiff-appellants. The deposition of P.W. 6 shows that this P.W. 6 was not Sri Giriwar Dayal, rather Sri Triloki Tiwary who was simply deputed to report about the physical features of the land in suit and his report was exhibited as Ext.-2. The first appellate Court considered this report of Sri Triloki Tiwary and held that since Sri Triloki Tiwary was not Survey Knowing Commissioner, and so his report was unreliable. This Triloki Tiwary (P.W. 6) stated that he did not know the art of survey. It is further apparent from the lower Court records that besides Sri Triloki Tiwary, another Advocate was appointed to report regarding physical feature of the land in suit which might differ with the earlier report. The subsequent Pleader Commissioner was, namely, Sri Ram Pravesh Singh and he had submitted his report dated 3rd January, 1975. The report of Sri Triloki Tiwary was dated 26.8.1968. So it appears that some Pleader Commissioners were just to report on the physical features of the land in dispute; but so far as the extent of encroachment and encroachment in particular were concerned, it was Sri Giriwar Dayal, the Survey Knowing Pleader Commissioner, who was appointed to report. The trail Court based his judgment on the report of the Survey Knowing Pleader Commissioner who was Sri Giriwar Dayal and not on the report of Sri Triloki Tiwary (P.W. 6) who was not the Survey Knowing Advocate. Hence, when the first appellate Court referred to the report of Sri Triloki Tiwary and wrongly came to the conclusion that since the trial Court’s finding was based on the report of this Pleader Commissioner, having no knowledge of survey, the trial Court had wrongly passed the decree in favour of the appellants. This reference to the report of the Pleader Commissioner by the appellate Court was, of course, an error of the record; because the trial Court while discussing issue No. 3 at Paragraph 9, did not base his finding on the report of Sri Triloki Tiwary, rather on the report of Sri Giriwar Dayal. So the first appellate Court apparently did not consider the report of Sri Giriwar Dayal, Survey Knowing Pleader Commissioner and, thus, passed the wrong judgment after committing error of record. So, I am of the opinion that there of course, has been committed an error of record.
5. In the result, this appeal is allowed. The judgment and decree passed by the first appellate Court are set aside. The judgment and decree passed by the trial Court are confirmed.