The court emphasized the importance of considering only the fresh survey report as part of the evidence and not the earlier reports which stood superseded or discarded.

Hon'ble Pankaj Mithal, J - The plaintiff appellant has failed before both the courts below in a suit for permanent injunction concerning land measuring 718.3 sq. yards allegedly situate in the western portion of plot no. 53 Mauja Delhi Sujanpur Gandhi Gram, Krishna Nagar, G.T. Road, Kanpur Nagar.

2. It is admitted to the parties that plot no. 53 belongs to the plaintiff and plot no. 54 belongs to the defendants.

3. The only issue before the courts below was whether the land in dispute forms part of plot no. 53 or not.

4. In the suit, a vakil commissioner was appointed for locating the land in dispute who submitted report dated 18.9.1971 paper no. 52 Ga Exhibit No. 1 A. The trial court discarded the aforesaid report for various reasons and concluded that there is no evidence on record to establish that the disputed land forms part of plot no. 53. Accordingly, the suit was dismissed.

5. The plaintiff preferred an appeal. In appeal the then District Judge vide order dated 8.2.1978 framed the following issue and remitted it to the trial court for its finding:- Whether the land shown by letters ABGH in the site plan attached with the plaint is part of survey plot no. 53 as alleged, if so, is the plaintiff owner of this land?. On the remittance of the above issue one Sri Jaidev Kumar Srivastava was appointed Advocate Commissioner who submitted report dated 18.1.1980 paper no. 236 Ga as well as the additional report dated 18.9.1982. On 7.8.1983 one Sri M.P. Srivastava was appointed as the survey commissioner and he submitted report paper no. 254 Ga. Another report was submitted by the Advocate Commissioner Sri K.K. Saxena who was appointed on 29.1.1987. This report is dated 30.11.1982 paper no. 272 Ga. He also submitted an additional report. The trial court vide order dated 11.10.1993 decided the issue and remitted its finding to the appellate court. The appellate court on consideration of the aforesaid finding concluded that the plaintiff has failed to prove his case and accordingly dismissed the appeal.

6. I have heard Sri Jitendra Kumar learned counsel for the plaintiff appellant and Sri Som Narain Misra, learned counsel for the defendants no. 1 and 2. Respondent no. 3 is a formal party and as such no one has appeared on his behalf.

7. The appeal was admitted on the substantial questions of law no. 1,5 and 7 which read as under:-

i) Whether the appellate court has erred in deciding only issue no. 1 out of 7 and totally ignored the mandatory provision of law which is Order 20 Rule 5 C.P.C., this grievous error of law is enough to set aside the judgment of the appellate court.

v) Whether the Trial Court has erred in not deciding the issue no. 1 as directed by the appellate court by its order dated 8.2.1978 and further the trial court has ignored the mandate given in the order and decided it on 11.10.1993.

vii) Whether the Trial Court erred in applying the principle laid down in the amendment in Order 1 Rule 9 CPC (Act No. 104 of 1976) which was enforced w.e.f. 1.2.77; whereas the suit was decided on 3.1.77, the amended provision was "provided that nothing in this rule shall apply to non joinder of a necessary parties".

8. Learned counsel for the plaintiff-appellant has failed to demonstrate that the above questions are questions of law much less substantial questions of law and how they arise in the facts and circumstances of the case. Therefore, in view of the ratio laid down in Govindraju Vs. Mariamman to the effect that at the hearing of the appeal respondent is at liberty to show that the question so formulated was actually not involved. I proceed to decide the appeal on the basis of the arguments made and the question raised by the counsel for the plaintiff appellant at the time of hearing.

9. Two submissions have been made by the counsel for the plaintiff appellant; first, the courts below have manifestly erred in law in not considering the survey commission report 236 Ga which proved that the land in dispute is part