Commissioner’s reports, if accepted without objection, are not binding and can be challenged during trial. The court must evaluate all evidence before arriving at a conclusion on land disputes.

JUDGMENT :

A.C. Behera, J.

This Second Appeal has been preferred against the reversing judgment.

2. The Appellant in this 2^nd appeal was the Defendant before the Trial Court in the suit vide T.S. No.112/82-I and Respondent before the 1^st Appellate Court in the 1^st Appeal vide M.A. No.20/88-I.

The father of the Respondent in this 2^nd appeal i.e. Chakradhar Mandal was the Plaintiff before the Trial Court in the suit vide T.S. No.112/82-I. After the judgment and decree passed in the suit vide T.S. No.112/82-I, when the Plaintiff Chakradhar Mandal expired, then, his son i.e. Bhagaban Mandal (who is the Respondent in this 2^nd appeal) preferred the 1^st Appeal vide M.A. No.20/88-I being the Appellant against the Defendant arraying him (Defendant) as Respondent.

3. The suit of the Plaintiff (father of the Respondent in the 2^nd appeal) vide T.S. No.112/82-I against the Defendant (Appellant in the 2^nd appeal) was a suit for declaration, recovery of possession and mandatory injunction.

4. The case of the Plaintiff was that, Plot No.1273 Ac.0.35 decimals under Khata No.641 in Mouza Kuligaon, under Khantapada Police Station in the District of Balasore originally belong to one Bhaba Giri. The said Bhaba Giri first sold Ac.0.19 decimals out of Ac.0.35 decimals from the western side of that Plot No.1273 to the Plaintiff in the year 1966. Since the date of aforesaid purchase, the Plaintiff possessed the said Ac.0.19 decimals of Plot No.1273 amalgamating the same with his other adjacent lands keeping the same within one enclosure.

Plot No.1274 of the defendant is situated to the adjacent west of the aforesaid purchased Ac.0.19 decimals of Plot No.1273. There was a middle fence in between the purchased Ac.0.19 decimals of the Plaintiff from suit Plot No.1273 and undisputed Plot No.1274 of the defendant and in the said middle boundary fence, there were/are different trees.

Subsequent thereto, the defendant purchased rest Ac.0.16 decimals of Plot No.1273 from its owner Bhaba Giri. There was a ditch in Plot No.1274 of the Defendant being adjacent to the middle fence of the land of the Plaintiff and Defendant. He (Defendant) filled up the said ditch through earth. At the result of which, the middle boundary fence between Plot No.1274 of the Defendant and the purchased Ac.0.19 decimals of land of the Plaintiff from Plot No.1273 damaged.

For which, the Defendant encroached the “Ga” schedule land i.e. an area of Ac.0.01^1/2 decimal from the purchased Ac.0.19 decimals of land of Plot No.1273 of the Plaintiff and put a new fence encroaching the “Ga” schedule land (which is the part of the purchased land of the plaintiff). The said “Ga” schedule land is the suit land, which is specifically shown by the Plaintiff in rough sketch map of the Plaint. The branches of the big trees of the defendant raised inside his land have also been extended to the land of the Plaintiff, for which, it has become impossible on the part of the Plaintiff to grow crops in his land. The Defendant created the above problems encroaching the “Ga” schedule suit land of the Plaintiff and requested him (Plaintiff) to sell the suit land to him (Defendant), to which, the Plaintiff did not agree.

For which, without getting any way, he (Plaintiff) filed the suit vide T.S. No.112/82-I against the Defendant praying for a declaration that, the “Ga” schedule suit land is the part of