The report of the Commissioner is legal evidence in the suit, but the evidence alone without the report of the Commissioner cannot be received as evidence in the suit. In a case where objection is raised to the report of the Commissioner the Court has to be satisfied that the local investigation was complete and free from error before he accepts the report.

D. P. MOHAPATRA, J.

( 1 ) THE order dated 12-5-89 passed by the learned Subordinate Judge, Bhubaneswar in Title Appeal No. 15 of 1975 whereby he accepted the report of the Commissioner overruling the objections raised by the petitioner is under challenge in this revision petition.

( 2 ) LATE Agadhu Behera, father of the petitioners, filed O. S. No. 25 of 1973-I before the Munsif, Khurda for declaration of his title to the suit land, confirmation of his possession thereon and for permanent injunction against the opposite parties-defendants in respect of a strip of land measuring Ac 0. 10 decimals under Khata No. 256 in Mouza Sampur. As stated in the revision petition the disputed strip of land lies on the western side of the petitioners' plot No. 558. The adjacent plot bearing No. 557 belongs to the opposite parties. The gist of the case stated in the plaint was that the disputed strip of land was a part of plot No. 558. It originally belonged to one Nityananda who sold the same to Agadhu Behera on 9-3-62. Since then Agadhu Behera and thereafter the present petitioners have been in possession of the disputed land. The defendants, owners of the adjacent plot wanted to forcibly include the disputed land and the well situated thereon by putting a fence. The plaintiff alleged that in that process the defendant encroached over a portion of his plot measuring 5 links x 200 links. In these circumstances, the plaintiff was compelled to file the suit seeking the reliefs mentioned earlier.

( 3 ) THE defendants in their written statement denied the allegation in the plaint. According to them, the disputed strip of land with the well situated thereon was a portion of their plot No. 557 measuring A. 0. 45 decimals which they purchased from one Saradha Dei by registered sale deed dated 23-4-53 and since then they have been in possession of the land. It was their further case that there was a green fence to the adjacent east of the disputed well demarcating the land of the plaintiff, but in 1963 the plaintiff and his sons removed the said fence.

( 4 ) THE trial Court on consideration of the evidence on record decreed the plaintiff's suit holding, inter alia, that the disputed well stood over Hal Plot No. 558 belonging to the plaintiff and that the plaintiff had right, title and interest over the suit land and the well.

( 5 ) ON appeal by the defendants, the appellate Court by his order dated 7-1-76 deputed a survey knowing Commissioner to measure the two plots in question, plot Nos. 557 and 558 and ascertain to which plot the suit land and the well appertain. The Commissioner submitted his report that the disputed land along with the well as a part of C. S. Plot No. 557. Relying on the Commissioner's report the appellate Court allowed the appeal and dismissed the suit.

( 6 ) THE plaintiff filed Second Appeal No. 73 of 1980 in this Court. During pendency of the said appeal the original plaintiff Agadhu Behera died and the petitioners were substituted in his place. This Court by judgment dated 26-10-87 set aside the judgment of the first appellate Court and remanded the case for re-disposal of the title appeal with the direction that the lower appellate Court will give fresh opportunity to the plaintiff to cross-examine the survey knowing Commissioner. The Court observed that since the lower appellate Court arrived at the finding on the basis of the report of the survey knowing Commissioner whom he had himself deputed for the purpose he ought to have given reasonable opportunity to the plaintiff to cross-examine the Commissioner and having not done so the impugned judgment could not be sustained.

( 7 ) AFTER remand of the case the Commissioner Shri Baidyanath Chakrabarty who was examined as C. W. 1 was cross-examined by the plaintiff. Thereafter it was alleged on behalf of the plaintiffs that there were serious infirmities in the report and as such it was liable to be rejected and a fresh Commissioner should be appointed to measure the two