The absence of substantial objections against a commission report led to the dismissal of the appeal affirming lower court's decision.

1. The defendants 2 to 6 and the legal heirs of the 1st defendant are the appellants. The suit was one for recovery of possession on the strength of title. Originally, the Plaint A Schedule property was 3/4 cents of land, with respect to which trespass was alleged against the defendants. The Trial Court dismissed the suit as per judgment dated 21.01.2009. The plaintiff filed A.S.No.26/2009, and the First Appellate Court allowed the Appeal remanding the matter back to the Trial Court, directing to dispose of the matter for fresh disposal after affording an opportunity to the plaintiff to incorporate sufficient pleadings and identification of the property as per Ext.B5 document and directing to give the opportunity to adduce further evidence.

2. Thereafter, the plaintiff took out a Commission, and the Commission Report was marked as Ext.C3 and the Plan was marked as Ext.C4. As per the said Report and Plan, the Advocate Commissioner found that the defendants have encroached into 206 Square Links in Sy. No.28/2A3 belonged to the plaintiff, which is covered by Ext.B5 document. After the filing of the Commission Report, the extent of the plaint A schedule property was amended as 206 Square Links.

3. Relying on Ext.C4 Plan, the Trial Court decreed the suit directing the defendants to surrender vacant possession of the plaint A schedule property to the plaintiff within one month. Though the defendants 2 to 6 and the legal heirs of the first defendant filed an Appeal before the First Appellate Court, the same was dismissed, confirming the judgment and decree passed by the Trial Court.

4. Since there was a delay in filing this appeal, the respondent appeared in the Application to condone the delay, and the delay was condoned.

5. I heard the learned counsel for the appellants, Sri. K. R. Arun Krishnan and the learned counsel for the respondent, Sri. Pushparajan Kodoth.

6. The learned counsel for the appellants contended that the Trial Court, as well as the First Appellate Court, were not right in granting the decree relying on Ext.C4 Plan. Ext.C4 plan is prepared by the Advocate Commissioner and not prepared by a Surveyor. It does not satisfy the requirements laid down by this Court in a decision in Sabu v. Sasi [2022 (2) KHC 435]The Trial Court has not complied . The Trial Court has not complied with the order of remand passed by the First Appellate Court in the first round.

7. On the other hand, the learned counsel for the respondent submitted that the Advocate Commissioner was appointed with the assistance of a Taluk Surveyor, and it is clear from Paragraph 2 of Ext.C3 Report that the Advocate Commissioner measured the property and prepared the Plan with the assistance of a Taluk Surveyor with FMB, etc. The defendants did not file any Objection to the Commission Report and Plan.

8. On considering the rival contentions, I find that as per Ext.B5 the property covered is 1.600 Cents comprised in R.S.No.28/2A of Kalanad village. Defendants 1 and 3 claimed that defendants 1 and 3 together have 5 cents of land in R.S.No. 28/2A. In Ext.C4 Plan, the Advocate Commissioner identified 1 cent of land belonging to the 1st defendant and 4 cents of land belonging to the 3rd defendant as 4.358 cents. The Trial court entered a specific finding that the defendants pleaded in their Written statement that they are not in possession of any property except 5 cents of land comprised in R.S.No.28/2A lying together. Going by the Commission Report, they are having excess land than described in their title deed, whereas the plaintiff is having deficit land with reference to Ext.B5.

9. It is true that the Ext.C4 Plan does not bear the name or signature of the person who prepared it. But the properties are identified with side measurements, and it is specif