The burden of proof lies with the plaintiff to establish the claim of encroachment and change in boundaries due to floods. Interference with the Commissioner's report requires clear and sufficient grounds, and the court must consider oral deposition of witnesses and other documentary evidence.

1. This Second Appeal is directed against the judgment and decree of the District Court at Dindigul-Anna District reversing the judgment and decree of the District Munsif Court at Dindigul.

2. The Original Suit was filed by the first respondent herein in respect of his 50 cents of agricultural land situate at R.S. No.209/C in Ellapatti Village, Palani Taluk for the relief of declaration of title, recovery of possession and mandatory injunction directing the defendants to form an odai in their land in Survey No.204.

3. The plaintiffs case is that the suit property was inherited by him and his brothers from their ancestors. The property of the defendants is located in the south of the plaintiffs property in Survey No.204. There was an odai running through the defendants' land and six years prior to the filing of the Suit, due to heavy floods, the said odai pushed into plaintiffs property and consequently, the boundaries of the plaintiffs property got changed and defendants encroached 50 cents of the suit property and therefore, he filed the Suit for the relief’s as stated above. In support of the plaintiffs case, seven documents were marked and two witnesses were examined.

4. Resisting the case of the plaintiff, the third defendant filed a written statement which was adopted by the other defendants too. In the said written statement, it was contended that there was no flood as such six years prior to filing of the Suit and further, the defendants' land was 3 ft. higher than that of the plaintiffs land and that being the case, there was no possibility for encroachment by the defendants and hence, the Suit had to be dismissed. On the side of the defendants, nineteen documents were marked and three witnesses were examined.

5. The Trial Court, on consideration of the oral and documentary evidence, rejected the claim of the plaintiff that there was heavy flood and came to the conclusion that since the defendants' land was 3 ft. higher than the plaintiffs land, there is no possibility for encroachment by the defendants and holding so, the Trial Court dismissed the Suit.

6. On Appeal, the First Appellate Court, differed with the view of the Trial Judge and presumed that the floods would have pushed inside the plaintiffs land and placing reliance on the report of the Advocate Commissioner, it was of the opinion that 33 cents of land in Survey No.209/2C is located beyond the odai and the same is in possession of the defendant and decreed the Suit in respect of entire 50 cents of the suit property. As against that judgment and decree of the Lower Appellate Court, the present Second Appeal.

7. On 20.03.1995, this Court admitted the Appeal on the substantial question of law as to whether the Commissioner's Report was the proper document to be read by the Court below, when especially the Commissioner did not identify the exact extent which the plaintiff owns in S.No.209/2C.

8. Mr. R. Vijayakumar, learned counsel appearing for the appellants has strenuously contended that the mere consideration of a portion of the report of the Advocate Commissioner for deciding the main issue between the parties is not proper, more particularly when the Commissioner has failed to identify the exact extent of the suit property. He has further contended that the Appellate Court has not considered Ex.B.1, the partition deed and also Ex.A.4, the partition deed subsequently entered into between the first respondent and his brother in its true perspective and it has failed to note that the first respondent and his family members were allotted an extent of 3.20 acres in Survey No.209/2C out of a total extent of 6.43 acres and in the subsequent partition deed under Ex.A.4, the extent of the property is mentioned as 3.90 acres and the first respondent has miserably failed to prove the acquisition of excess of 70 cents of land in the said survey number and therefore, the Appellate Court's decision in not considering the above facts has vitiated the entire finding