Lalit Mohan Sharma, J.

1. The appellant and the other plaintiffs filed the suit out of which this second appeal arises for declaration of their title to and recovery of possession of a small piece of land claimed to be part of plot No. 317 khata No. 605, detailed in the plaint. The plot No. 317 belongs to the plaintiffs and the adjacent plot No. 316 to the defendant. The plaintiffs alleged encroachment. The defendant detailed the claim.

2. During the pendency of the suit in the trial court the plaintiff No. 2 died and an application for substitution of his heirs was made. The learned Munsif directed the application to be placed for orders on the next date, but later lost sight of the same and without any orders thereon; the suit proceeded to trial.

3. The learned Munsif accepted the plaintiffs case and decreed the suit. On appeal the lower appellate court reversed the decision. One of the plaintiffs has now come to this Court in second appeal.

4. The main Controversy in the suit is regarding the identity of the disputed land. The learned Additional Subordinate Judge, who heard the appeal, has observed in paragraph 20 of the judgment that the main reliance by the plaintiffs was put on the report of the Pleader Commissioner appointed by the trial court which supports the plaintiffs case. The learned Subordinate Judge has, however, refused to rely on it on the ground that the Commissioner had committed serious error, which rendered his report unhelpful. He expressed serious doubt in the Commissioner being a qualified survey-knowing Advocate and pointed out that no opinion was expressed in the report on a "crucial point". I have gone through the judgment and the observations made by the court below against the Commissioners report appear to be justified. However, the question which now arises as to the course which should have been adopted by the court below after rejecting the Commissioners report.

5. The disputed land is small in area and a proper report submitted by a survey-knowing Commissioner, after measuring the plots Nos. 316 and 317 can undeniably be of great help. The other points on which the report can throw light, mentioned by the courts below, will also furnish relevant evidence. Appreciating this aspect, the trial court allowed the plaintiffs prayer for appointment of a Commissioner, but while making the appointment, a wrong choice was made. According to the lower appellate court, an incompetent person was entrusted with the work. But since the plaintiffs cannot be blamed for the selection, they cannot be made to suffer. The trial court having allowed their prayer, they should not be denied the services of an efficient Commissioner. The court below should have therefore, directed the appointment of another Commissioner.

6. Mr. Ashwini Kumar Roy, the learned Counsel for the respondents strenuously contended that in view of the limited scope of Sec.100 of the Civil Procedure Code, after the amendment of 1976, the High Court should not interfere with the decision the aforementioned ground Comparing the language of the section before and after the amendment, the learned Counsel argued that the error in not appointing another Commissioner is procedural in nature and is not covered by the section as it now stands, and the cases in Tirthabasi Singh Roy and Anr. V/s. Bipin Krishna Roy 23 C.L.J. 600 and Deb Narain Kundu V/s. Amrita Lal Sil A.I.R. 1938 Patna 421 are now of no help.

7. In Tirthabasi Singhs case (supra) a similar situation as in the present case arose and the Calcutta High Court held that the case was lit to be remitted to the trial court for appointment of another Pleader Commissioner It is true that while so doing the Court referred to Clause (c) of Sec.100(1) of the Code as it stood then. The question is whether a substantial error or defect relating to the procedure in the trial court can be taken as a ground now.

8. As mentioned above, the plaintiffs were heavily relying on the report of the Commis