The acceptability of evidence, the burden of proof, and the requirement for positive evidence to support a claim were central legal principles established in the judgment.

P. K. TRIPATHY, J.

( 1 ) FOR the reasons indicated below, the Second Appeal is bound to fail and consequently dismissed.

( 2 ) THE following substantial question of law was formulated on 1-8-1989 when the second Appeal was admitted. "the only substantial question of law which arises for consideration in this Second Appeal is, whether the learned Courts below were correct in recording their findings solely on the basis of the report of the civil Court Commissioner without taking into consideration the other evidence available on records. "

( 3 ) IT be noted at this juncture that in the appeal memo appellants have raised three other substantial questions of law challenging to the acceptability of the report of the civil Court Commissioner but such grounds were not accepted by this Court to be relevant substantial questions to be considered at the time of hearing of the appeal.

( 4 ) JUDGMENT and decree passed by the munsif, Bhubaneswar (Civil Judge, Junior division) on 11th May, 1984 in O. S. No. 49 of 1976 by way of dismissing the suit was confirmed by learned Addl. District Judge, bhubaneswar as per the impugned judgment passed in 13-1-1989 in Title Appeal no. 1/9/29 of 1989. Therefore, plaintiffs are the appellants.

( 5 ) THE original plaintiff Budhi Nayak filed the suit for declaration of his right, title and interest in respect of the suit property and for eviction of the defendants and to grant relief of recovery of possession in his favour besides issue of mandatory injunction against the defendants to remove the construction illegally raised by them. During pendency of the appeal in the lower appellate Court the original plaintiff having died, as per the order of the appellate Court passed on 16-1 -1986, the present appellants were substituted as his legal representatives being respectively the son and the widow of said Budhi Nayak.

( 6 ) THE disputed property is a stripe of land measuring an area of Ac. 0. 05 decimals having the size of 20 feets x 6 feets. That disputed area situates between

the lands belonging to the defendants vide plot nos. ,1580 and 4752, and the land belonging to the plaintiffs vide Plot No. 1579. According to the plaintiffs, the disputed property is a part and parcel of plot No. 1579 belonging to them and there was a green fence demarcating the boundary of said plot from plot Nos. 1580 and 4752 belonging to the defendants. According to the plaintiffs, -on 31-12-1975 defendants forcibly encroached upon the disputed portion and constructed a compound wall and some other constructions without paying any heed to the protest raised by the original plaintiff and his family members. Accordingly the plaintiffs claim for the aforesaid reliefs. Defendants in their written statement, inter alia, claim that they have not constructed stone boundary wall on the disputed area and that, such construction was made by the plaintiffs and further that the disputed area appurtains to plot No. 1580 and 4752 belonging to them.

( 7 ) ON the basis of such pleadings of the parties, trial Court framed the following four issues. (I) Whether the plaintiff has got title over the suit land? (II) Is there any cause of action? (III) Is the suit bad for non-joinder of necessary parties? (IV) To what relief, if any, is the plaintiff entitled?as stated at the bar, and rightly so, issue no. (i) is the issue which is to determine if the plaintiffs are entitled to the reliefs claimed. In support of their respective cases when plaintiffs examined three witnesses including the original plaintiff as P. W. No. 1, defendants also examined three witnesses including defendant No. 1 as D. W. No. 1. Several documents were relied upon by the parties and the relevant documents shall be noted at the time of consideration of the contention of the parties,fact remains that an Amin Commissioner made a measurement and at the behest of the trial Court such documents were marked Exts. I to VII. Out of the same, Ext. IV is the Field Book, ext. V is