Heard learned Counsel appearing for the parties. Learned Counsel for the appellants submits that,

R.C.S. No. 179 of 2004 was filed by the appellants herein. The trial Court after recording the evidence and after appreciating the evidence partly decreed the suit. The defendants were directed to hand over the possession of 1.20 Acres land out of Gat No. 105 to the plaintiffs by leaving his land 1.80 Hector. Further, the defendants were restrained from interfering in remaining land of the plaintiffs and also the plaintiffs were given liberty to start separate enquiry for mesne profit under Order 20 Rule 12 of the Code of Civil Procedure.

2. It is the contention of the Counsel for the appellants that, while reversing those findings, the lower appellate Court has not discussed the entire evidence including 7/12 extract at Exhibit8 which was placed on record. The lower appellate Court observed that, no any evidence is placed on record to show the ownership and possession of the appellants, therefore, the findings of the lower appellate Court are perverse and therefore, learned Counsel for the appellants submits that, the second appeal deserves consideration. It is further submitted that, there are two reports prepared by the T.I.L.R., one favours the appellants and another which is on the instance of the defendants favours the defendants stating therein that, there is no encroachment by the defendants on the land of the plaintiffs. Therefore, in such case, the Courts below ought to have ordered the joint measurement by exercising the power under Order 26 Rule 9 and 10 of the Code of Civil Procedure. Therefore, the Counsel for the appellants submits that, the second appeal deserves consideration.

3. On the other hand, learned Counsel appearing for the respondents submits that, the lower appellate Court after appreciating the evidence on record and after detail discussion about the facts of the case and documentary evidence, reached to the conclusion that, there is no encroachment as such by the defendants as alleged by the plaintiffs. Therefore, since the lower appellate Court is the last Court on facts, this Court may not interfere in the findings recorded by the lower appellate Court. Therefore, he prays that, the second appeal may be dismissed.

4. Upon hearing the Counsel for the parties, I am of the opinion that, looking to the controversy involved in the matter, it is appropriate to dispose of the second appeal at admission stage by directing the lower appellate Court to exercise the power as available under Order 26 Rule 9 and 10 of the Code of Civil Procedure and then appoint the Court Commissioner not below the rank of

T.I.L.R. or D.I.L.R. for joint measurement of the suit land. The present appeal raises following substantial questions law for consideration.

(1) Whether the Courts below failed to exercise power under Order 26 Rule 9 and 10 of the Code of Civil Procedure to order the joint measurement by appointing the Court Commissioner?

(2) When there were two reports from the T.I.L.R. office, one stating that, there is encroachment by the defendants over the plaintiffs' land and another stating that, the defendants have not encroached on the plaintiffs' land, whether it was incumbent upon the Courts below to order for joint measurement of the lands to set at rest the controversy involved in the matter?

(3) Whether the lower appellate Court has revisited all findings recorded by the trial Court while reversing the same?

5. On the aforesaid substantial questions of law, 'Admit'. On admission, learned Counsel waives service of notice for the respondents.

6. Upon hearing the Counsel for the parties and upon perusal of the impugned judgment and order, it is undisputed position that, there were two reports from T.I.L.R. office, on record, one prepared after measurement of the land of the plaintiffs on the application filed by the plaintiffs for measurement of their land and another prepared after measurement of the l