A Commissioner's report, even though it is not challenged by any of the parties, is not binding on the Court. The Court may accept the report, but such acceptance by itself does not preclude the parties from challenging the same by cross-examining the Commissioner at the trial or by examining witnesses and proving documents to nullify the effect of the Commissioner's report or to place materials from the report itself to prove that the same cannot be relied upon.

P. C. MISRA, J.

( 1 ) DEFENDANTS 1 to 3 have preferred this appeal against the confirming judgment of the learned Subordinate Judge, Aska. in a suit for recovery of possession, mesne profits and damages.

( 2 ) THE plaintiff's case, briefly stated, is that he purchased Ac. 0. 24 cents of land in Survey No. 169 from one Dasa Naik and Ac. 0. 26 cents of land in Survey No. 254 from one Ulla Sahu and others under two separate registered sale deeds dated 19-10-65 and 9-5-69, respectively Exts. 2 and 3. The plaintiff has alleged that after purchasing the said land he was in peaceful possession thereof till the month of May, 1970 when the defendants encroached upon different portions of these lands by removing the intervening ridges. According to him, defendant 1 has encroached upon Ac. 0. 04 cents of land from the south-east portion of Survey No. 169 and defendant 2 has encroached upon Ac. 0. 02 cents from the north of the said plot and defendants 2 and 3 together have encroached upon Ac. 0. 02 cents of land from out of Survey No. 254 while defendant 4 has encroached upon Ac. 0. 02 cents of land from the north of the said plot. As the defendants did not vacate the suit lands in spite of demands, the plaintiff got the encroached portions demarcated by a Government Amin and had to file this suit for the reliefs stated above.

( 3 ) DEFENDANT 4 did not contest the suit and was set ex parte. Defendants 1 to 3 contested the suit by filing a joint written statement. Their case is that the suit lands appertain to their plot and not to the plaintiffs plots as alleged by the plaintiff. They have denied the plaintiff's allegation of trespass and encroachment.

( 4 ) THE learned trial Court after discussing the evidence adduced on behalf of both the parties decreed the suit on contest against defendants 1 to 3 with costs and ex parte against defendant 4 and directed the defendants to deliver possession of the suit lands to the plaintiff.

( 5 ) AGGRIEVED by the decision of the trial Court, defendants 1 to 3 preferred Title Appeal No, 38 of 1976 before the Subordinate Judge, Aska, and that appeal having been dismissed, they have come up in this second appeal.

( 6 ) THE main dispute between the parties In the suit is as to whether the suit lands measuring Ac. 0. 10 cents appertain to the plaintiff's plots or to the defendant's plot as alleged in their respective pleadings.

( 7 ) IN the trial Court, a survey-knowing Commissioner was deputed at the instance of the plaintiff. The Commissioner submitted his report on 30-3-76 and the Court called upon the parties to file objections, if any, to the Commissioner's report by 8-4-76. But neither of the parties chose to file any objection and by Order No. 64 dated 8-4-76 the Court accepted the Commissioner's report. According to the Commissioner, there has been encroachment by the defendants from the plaintiff's plots to the extent of Ac, 0. 05 cents and not Ac. 0. 10 cents as alleged by the plaintiff. Therefore, the report of the Commissioner does not support the plaintiffs case in its entirety. At the trial, the plaintiff, however, did not rely upon the said report and examined P. W. 1, an Amin in the Tahasi] Office at Digapahandy. P. W. 1 has deposed that he was deputed by the Tahasildar, Digapahandy to get the suit lands demarcated in pursuance of an application filed by the plaintiff before the Taiha-sildar. Exhibit 5 is the map prepared by P. W. 1 in which he has indicated the encroached portions in red ink. Both the Courts below have relied upon the evidence of P. W. 1 and Ext. 5, the map prepared by him, and have come to the conclusion that there has been encroachment of Ac. 0. 10 cents of land from out of the plaintiff's plait, The Commissioner deputed by the trial Court has not been examined in the suit. Both the Courts have not attached much weight to his report Ext. 6 and the map prepared by him (Ext. 7) on the ground that he has not been examined in Court and has not stood the test of cros