V. Jagannathan, J.

This second appeal gives rise to an occasion to interpret Section 83 of the Indian Evidence Act, 1872 (‘the Act’ for short). The defendant before the trial Court is the appellant herein and he is aggrieved by the lower appellate Court reversing the judgment of the trial Court inasmuch as though the trial Court had dismissed the suit of the plaintiff for declaration and consequential injunction, the lower appellate Court allowed the appeal preferred by the plaintiff and decreed the suit of the plaintiff and hence this second appeal by the defendant.

2. The facts which fall within a very narrow compass are to the effect that the plaintiff, being the owner of plot No.11 of R.S.No.224 of Bagalakote, flied the suit in question by contending that the appellant herein, who was the defendant and being the owner of the adjacent plot No. 12, had encroached upon the plaintiff’s property and the portion encroached is described as GBC in the sketch annexed to the plaint and, therefore, the relief was sought for declaring the plaintiff as the owner of the GBC portion and for consequential order of injunction restraining the defendant from interfering with the said GBC portion.

3. The defendant, on the other hand, contested the said suit by taking up the stand that, while the plaintiff is the owner of plot No. 11, the defendant had purchased plot No.12 on 2.9.1993 and the defendant’s plot measured 61' east-west and 82' north-south and, therefore, the question of the defendant encroaching upon the plaintiff’s property will not arise. Another contention taken was that no survey was conducted and no notice was issued to the defendant and, therefore, the report of the surveyor was not binding upon him.

4. Based on the said pleadings of the parties, the trial Court framed the issued which are to be found at page-8 of the paper book and, after taking into consideration the evidence let in by the parties, the learned judge of the trial Court opined that the report of the surveyor could not be acted upon because of several infirmities like the appellant being not given an opportunity of being present when the survey was conducted and secondly, the report of the surveyor was not very accurate and no evidence was placed to prove the accuracy of the said report. On the basis of the said reasoning and taking note of Section 83 of the Evidence Act, the trial Court did not accept the case of the plaintiff and the suit was dismissed.

5. On appeal by the plaintiff, the lower appellate Court held to the contrary with regard to the surveyor’s report by observing that the evidence placed indicated that the defendant was served with the notice and one witness D.W.3 was also present during the survey and Ex.P-4 - P.T. Sheet, was not questioned by the appellant before any authority and, therefore, the question of viewing the surveyor’s report with suspicion or as inaccurate will not arise. As far as the absence of the appellant on the day of survey is concerned, the lower appellate Court observed that the appellant did not examine the author of the certificate Ex. D-4. On this reasoning, the suit of the plaintiff was decreed by allowing the appeal and thus, the defendant is before this Court.

6. I have heard the learned Counsel for the appellant. None appeared for the respondents and, therefore, in the absence of any representation, this Court could not have benefit of hearing the arguments on behalf of the respondents.

7. The learned Counsel for the appellant contended that the appreciation of evidence by the lower appellate Court is erroneous both on facts and in law inasmuch as the document produced by the appellant particularly the sale deed itself will go to show that the property of the appellant measured 61' east-west and 82' north-south and this fact is admitted by the plaintiff himself. Secondly, it was submitted that the report of the surveyor, Ex.P-4 suffers from several defects inasmuch as it is said to have been drawn on