JUDGMENT

Bennet, J. - This is a second appeal by the plaintiffs against a decree of the-lower appellate Court by which the decree of the first Court in favour of the plaintiffs was modified. The plaintiffs sued for an injunction calling on the defendants to fill in a certain ditch alleged to have existed on a plot in the ground of the plaintiffs and for a decree for possession for the plot in dispute. The Court of first instance granted a decree. The lower appellate Court found that the ditch did not exist and granted a decree merely for possession of a certain area A B P. The appeal has been argued solely on the ground that the lower appellate Court did not comply with the provisions of Order 41, Rule 27, in regard to the taking of additional evidence. In the memorandum of appeal filed before the lower appellate Court by the defendants it was stated that it was necessary to have fresh measurements made and that the appeal might be decided after those fresh measurements had been made. This appeal was filed on 2nd June 1928. The appeal was fixed for 26th July 1928, and on that date the defendants put in a written application asking for a commissioner to be appointed to make certain m