The main legal point established in the judgment is the necessity of scientific measurement for substantial justice and the error in rejecting the Pleader Commissioner's report without appointing a new Commissioner.

The sole appellant had brought Title Suit No.117 of 1974 before the court of learned Munsif, Siwan for declaration of title and recovery of possession. The case and claim of the appellant is that the appellant had acquired Plot No. 1026 through registered sale deed vide Ext-1 and Plot No.1027 alongwith other plots through registered deed of gift vide Ext-3. The plaintiff constructed a house on the amalgamated portion of both the aforesaid plots leaving some vacant lands around the constructed house. The case of the plaintiff is that the respondent 1st Set are owner of Plot Nos.1028 and 1029 in the southern boundary and defendant 2nd Set are owner of Plot No.1023 in the northern boundary of the plaintiff’s land. Both have encroached upon a portion of the land of the plaintiff in their respective side fully detailed in the plaint.

2. The respondents in their written statement denied the allegation of encroachment. However, they did not dispute the title of the plaintiff on Plot Nos.1026 and 1027 and their respective titles on the adjoining land as referred above.

3. Thus, the dispute whether there was any encroachment by the respondents on the land of the plaintiff appellant could have been resolved only by scientific measurement of the area of the land of the plaintiff and of the respondents. Further, the actual area of encroachment, if any, could have been established by the scientific measurement only.

4. The record reveals that two Advocate Commissioners had measured the land. They are P.W.5, Surendra Prasad Singh and D.W.5, Phulena Singh. They had submitted their report.

5. The learned Trial Court while dismissing the suit recorded that D.W.5, Phulena Singh is not reliable, as he has not scientifically measured the land of the plaintiff. Similarly, P.W.5, Surendra Prasad Singh had also not scientifically measured. Hence, their reports were not acceptable. Other oral evidence produced in the case had persuaded the learned Trial Court to hold that the defendants are in possession of the so called encroached portion.

6. While affirming the aforesaid finding of the learned Trial Court, the learned lower Appellate Court formulated two pointes for consideration i.e. whether the disputed land is part and parcel of plaintiff’s Plot Nos.1026 and 1027 or it is part of defendants’ Plot Nos. 1028, 1029 and 1023. Another points relating to title of the defendants by adverse possession has not been decided by the lower appellate court. The learned lower Appellate Court also did not rely on the testimony of the experts, P.W.5 and D.W.5 above and rejected their reports due to lack of scientific measurement.

7. The substantial question of law raised for adjudication in this appeal, is whether the court of appeal below was right in rejecting the Pleader Commissioner’s report on the ground stated, ignoring the provisions of Order 26 Rule 10 of the Code of Civil Procedure.

8. Heard Mr. Raghav Prasad, learned counsel for the appellant and Mr. S.S.Dwivedi, learned senior counsel for the respondent Nos.1 to 3. No one appeared for the rest of the respondents rather learned Advocate on record for other respondents informed that he has no instruction from the client.

9. Perused the records.

10. Submission of the learned counsel for the appellant is that once the courts below were of the view that the report of the expert is not scientific report, the court below should have rejected the report and appointed a fresh Commissioner for scientific measurement of the land because the only way for adjudication of the dispute raised was to scientifically measure the land and to come to definite conclusion whether there was any encroachment on the land of the plaintiff by the defendants and if to what extent. Both the courts below have erred in not appointing a fresh Commissioner after rejection of the report of the earlier Commissioner. Hence, the point is a substantial question of law for just decision of the case. Reliance has been placed on case of Sita