The onus of proving the accuracy of maps made for a particular cause lies on the party who produced it, and the necessity of appointing a Commissioner for local investigation under Order 26, Rule 9 of the Code of Civil Procedure for determining encroachment issues.

JUDGMENT - KHARCHE S.T., J.:-This appeal arises out of the judgment and decree passed by the learned District Judge on 28-3-1988 in Reg. Civil Appeal No. 18 of 1986 reversing the judgment and decree passed by the trial Court on 24-1-1986 in Reg. Civil Suit No. 50 of 1982. The trial Court granted decree in favour of the plaintiff and directed defendant No. 2 to deliver the vacant possession of the suit site to the plaintiff by removing the structure thereupon with a further direction that defendant No. 1 shall pay damages at the rate of Rs. 72/- for the period from 24-3-1982 to 16-4-1982 at the rate of Rs. 3/- day for the illegal use and occupation of the suit site and also directing defendant No. 2 to pay damages at the rate of Rs. 3/- per day from 1-7-1984 till the date of the order. The trial Court had also directed an enquiry into future mesne profits. The defendants carried an appeal to the District Court and the Appellate Court set aside judgment and decree passed by the trial Court by allowing the appeal and dismissed the suit.

2. The plaintiff/appellant is the owner of Plot No. 224, Sheet No. 9-B situated at Pandharkawada. A temporary shed was Constructed on this plot which is adjoining to the Nazul land abutting the road on the eastern side. The plaintiff was under apprehension that the defendants have made encroachment on his land and, therefore, he moved the Nazul Surveyor for the purpose of measurement of his plot. The first measurement was carried out by the Nazul Surveyor on 17-7-1980. It is contended that no specific area of encroachment was mentioned in the map and, therefore, the second measurement was carried on 12-11-1981 by the Nazul Surveyor, who prepared the map (Ex. 42) wherein he had shown some encroachment. Thereafter, the third measurement was carried out on 5-6-1985 by the Nazul Surveyor who prepared the map (Ex. 43) and it was revealed that defendant No. 1 had made encroachment to the extent of 10 x 7 feet. The plaintiff served a notice dated 11-3-1982 on the defendant calling upon them to deliver the possession of the area under encroachment to which no reply was given and ultimately the suit was filed on 17-4-1982 claiming possession and mesne profits.

3. The defendant No. 1 admitted that the plaintiff is the owner of Plot No. 224. The defendant No. 1 combated the claim of the plaintiff and contended that he sold the temporary structure which was standing on the Nazul land to the East of Plot No. 224 to defendant No. 2 and, as such, he is not responsible for any encroachment which is said to have been made on the land of the plaintiff. The defendant No. 2 also adopted the defence put forth by defendant No. 1.

4. The trial Court on appreciation of evidence granted decree in favour of the plaintiff and recorded findings that the plaintiff has proved that both the defendants had made encroachment upon his land and negatived the contention of the defendants that Pandurang Devghare is a statutory tenant on the disputed site and that defendants No. 1 and 2 are the licensees of the said Pandurang Devghare.

5. The Appellate Court on reappreciation of the material brought on record was of the view that whatever measurements were carried out by the Nazul Surveyor cannot be said to be accurate in any manner and it would be futile to examine the Commissioner, if appointed under Order 26, Rule 9 of the Code of Civil Procedure. The Appellate Court recorded a finding that the plaintiff has failed to establish that the defendants have made encroachment on the later's land muchless to the extent of 10 x 7 feet on the north-east portion. Consistent with these findings, the Appellate Court set aside the Judgment and decree passed by the trial Court.

6. The defendant No. 2 died during the pendency of this appeal and his legal representatives are brought on record.

7. None present for the respondents/defendants and the legal heirs of defendant No. 2 though duly served.

8. The learned Counsel for the plaintiff/appellant con

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