The issue of a second commission on the same subject-matter without setting aside the report of the first commissioner, although an error, does not per se affect the merits of the case and therefore cannot vitiate the trial or render the judgment liable to be set aside.

1. This second appeal by the second defendant arises in a suit by the respondent to recover possession of the property in schedule B which is a part of the property in schedule A of the plaint on the basis of title. In view of the findings of the two courts on title and possession which are concurrent, I do not think it necessary to state the facts in detail. The respondent claimed the property in schedule A under Ext. A2, his earliest document of title of the year 1921, while the appellant claimed the property under Ext. B8, his earliest document of title of the year 1929. At the trial, the commissioner furnished a plan Ext. C2 and a report, to which both parties objected. Upon this, the court issued a second commission which produced the plan Ext. C1 and the report Ext. C6. The two courts have relied on Ext. C1 plan, though as the Munsiff remarked, in their arguments before him, counsel relied on both plans. An objection was raised before the Subordinate Judge to the issue of two commissions by the Munsiff; he noted that the Munsiff had acted on Ext. C1 and that both parties did not object to the issue of a second commission. In second appeal before me, learned counsel for the appellant reiterated the same ground and contended, that the issue of the second commission, even if done with consent of parties is illegal and is contrary to the provisions of Order XXVI, R.10 and relied on the decisions in Ambi v. Kunhikavamma (AIR. 1929 Mad. 661) and Kunhi Kutti Ali v. Mohammed Haji (AIR. 1931 Mad. 73). These cases have taken the view, that the issue of a second commission on the same subject-matter without setting aside the report of the first commissioner is contrary to law. But the Patna High Court in Shib Charan Sahu v. Sarda Prasad (AIR 1937 Patna 670) has explained the Madras view. Even in the Madras cases cited, it was not held to be such an illegality as would vitiate the trial and render the judgment liable to be set aside on that ground. In my view, this was only an error, or defect, or irregularity in the proceedings in the suit which did not per se affect the merits of the case and therefore under S.99, CPC. the decree cannot be reversed, or substantially varied and the case cannot be remanded on that ground. Moreover the parties have not been prejudiced, as both of them have relied on Ext. C1 and the two courts have decided the case almost exclusively on Ext. C1, but for one or two incidental references to Ext. C2.

2. On the merits of the case, the two courts have decided the issue between the parties, on the boundaries specified in the earliest documents of title, Ext. A2 for the respondent and Ext B5 for the appellant. The eastern boundary has been located with reference to Peediyode Nilam, which is situated to the east of the property in schedule B and is marked in Ext. C1. For the appellant it was urged, that there is Peediyode Nilam on the extreme west of the plot Al in Ext. C1 which the Subordinate Judge has omitted to notice. This is so. What is important to note is, that Peediyode Nilam is the eastern boundary of the respondent's property as seen from Ext. A2 and is also the western boundary of the property of the appellant as seen from Ext. B8; this could be, only if Peediyode Nilam is as marked on the east of B schedule property. This is not the only thing. The southern and the northern boundaries were also located or identified by the courts so as to include the suit property. In doing so, incidentally the court has to locate Kanniarkavu Paramba and item 7 in Ext. Al and Ext. A2 and the court below took it that item 7 comprised survey Nos. 20/1, 20/2, and 20/8. Before the commissioner, the respondent had admitted, that plots B, B1, and E constituted item 7 in Ext. A2 and it was complained that this was contrary to what the judge has stated, as above. Pw.1 also made a similar statement. Assuming that there is this discrepancy in the evidence the court below was justified in attaching greater import