This second appeal is against the Judgment and Decree dated 12.7.1994 passed by First Additional Judge to the Court of District Judge, Vidisha in Civil Appeal No. 81-A/91, arising out of the Judgment and decree passed by Additional Civil Judge Class-II, Vidisha in Civil Suit No. 27-A/82.

Plaintiffs-appellants have preferred this appeal against the dismissal of the suit filed on the ground that the defendants encroached upon the disputed land shown in the plaint map. The claim was denied. The trial Court dismissed the suit. An appeal preferred before the lower appellate Court has also been dismissed. Against which the appellants have preferred this appeal.

Counsel for the appellants submitted that dispute in the suit is that the defendant has made encroachment. This has been denied by the defendant. There is no agreed map and as such the matter cannot be determined effectively unless competent Revenue Officer is appointed as commissioner to demarcate and measure the spot.

It is pertinent to note that the Court has discretion to issue a commission, it is not an arbitrary but judicial discretion to be exercised according to well established principles. The appointment of a Commissioner to take measurement is the invariable rule when there is a dispute as to boundary or a dispute as to identity of land or a dispute as to encroachment. The object of local investigation in such cases is not so much as to collect evidence which can be taken in Court, but to obtain evidence which from its very nature can only be had on the spot. The question as to whether there has been an encroachment or not, cannot be conclusively proved by oral evidence alone, without such measurement. Reliance has been placed on a decision of this Court reported in 1974 MPLJ Note 65 [Smt. Uttami Bai v. Chhaganlal]. Further reliance is also placed in Division Bench of this Court in 1975 JLJ 440 = 1975 MPLJ 801 [Durga Prasad v. Parveen Foujdar]. Counsel for the appellants submitted that the appointment of the Commissioner can be made at any stage of the proceedings.

Having heard the counsel for the parties and after perusal of the record, in the opinion of this Court, it is just and proper that a direction is given to the lower appellate Court to appoint a Revenue Officer as commissioner for taking measurement of the land on both sides. It is made clear that the notice shall be given to the parties. Counsel shall also co-operate in the matter. The commissioner shall visit the spot and demarcate. A report shall be submitted before the lower appellate Court by the Commissioner. After the report is filed, the lower appellate Court shall give opportunity of hearing to the parties .and shall decide the case in accordance with law, as expeditiously as possible on its own merit.

Counsel for the parties submitted that since the matter is being remanded back to lower appellate Court to decide afresh after appointment of commissioner it is not necessary to decide the other substantial questions of law regarding interpretation of the sale deed and also about provisions of Order 8 Rule 5 CPC and they be allowed to be reagitated before the lower appellate Court. This contention is accepted.

In view of what has been stated above, the appeal is allowed. The judgment and decree passed by the lower appellate Court are set aside and the matter is remanded back to the lower appellate Court for deciding it fresh.

No costs.