Ram Labhaya J- This appeal has arisen. " out of a suit foe a declaration of right and title to and khas possession of 10 lessas of .land described in the schedule attached to the plaint. The suit was dismissed by the learned Munsiff of Sibsagar. The appeal also failed. Plaintiff has come to this Court on second appeal. [2] Plaintiff and his three brothers were the-owners of the entire land covered by P. P. No. 132 of Sibsagar town. It measured l B, 2 K. 11L. The land was partitioned through Court in I93i. After this partition plaintiff purchased the share of his nephew Jutnalal and he thus became the owner of dags Nos. 1370 and 1937 of P. P. NO. 322 % (Ex. 2). Defendant l became the owner of dag No. 1633 of P. P. NO. 962 by purchase. This fact is not disputed. Dag NO. 1370 belonging to thft plaintiff is contiguous to dag No. 1633 belonging to defendant 1. Some time before the institution of the suit, out of which this appeal has arisen, plaintiff applied to the Sub-Deputy Collector for the measurement of his land. The Sub. Deputy Collector after measurement of the land found that there was an encroachment of 1C lessas of plaintiff's land by defendant l. Plain­tiff instituted a suit for a declaration of his title and for khas possession of his land measuring; 10 lessas alleged to have been encroached by defendant 1. [8] Defendant l denied that there was any encroachment. His defence was that he occupied the land which he purchased from Tugunram Agarwalla who in his turn had purchased it from Gajananda, a brother of the plaintiff. The learned Munsiff, who heard the case, issued a commission to the Sub-Deputy Collector for a local enquiry by measurement of the contiguous-fields in accordance with the directions given. On the first occasion the Commissioner found that the defendant had encroached to the extent of the lessas of laud belonging to plaintiff from dag No. 1370. As it was found that the measurement ;, was done in a way which could not be regarded as satisfactory, he was asked to re-measure the land. On the second occasion he found that the encroachment was to the extent of is lessas.: Plaintiff put in objections against this report; and the Commissioner was summoned at his instance. As it was found that the measurement ;, was done in a way which could not be regarded as satisfactory, he was asked to re-measure the land. On the second occasion he found that the encroachment was to the extent of is lessas.: Plaintiff put in objections against this report; and the Commissioner was summoned at his instance. The Court found that the objections-against the report were not valid. The plaintiff, however, applied for the issue of a fresh commission for determining the dispute. This petition waa rejected. The learned Subordinate Judge then considered the available materials. He rejected the second report of the Commissioner on the ground that when making his measure­ment on the spot, he did not refer to the origi­nal map prepared at the time of the partition in 1934. He had only the cadastral map before him which according to him had bean corrected by the Mandal after the partition case. The lear­ned Judge was of the view that the corrections made by the Mandal required the choking and approval from the Sub-Deputy Collector. The Commissioner was not in a position to say that the cadastral map had been duly checked. In these circumstances he held that the Commissioner's report was valueless and could not prove plaintiff's contention. As a result, he dismissed plaintiff's suit. [4] The learned Subordinate Judge dismissed the appeal holding that the allegations about encroachment could only be substantiated by direct evidence of the disturbance of boundaries after the partition and as this evidence was lacking, it waa not necessary to appoint a Com­missioner for fresh measurement. Plaintiff has appealed. [5] We have heard the learned counsel for the parties and we think that this appeal must Succeed. Order 26, B. 9 authorises the Court to issue a commission for local investigation if deemed requisite and proper for the purpose of elucidating any matter in dispute. The Court is not bound to issue a commission. The power is discretionary. It may order a local investi­gation or it may not. In this case, the trial Court exercised the discretion in favour of the plaintiff evidently believing that the question, of encroachment could only be decided by neces­sary measurements on the spot. The two at­tempts made by the Commissioner proved abortive. The power is discretionary. It may order a local investi­gation or it may not. In this case, the trial Court exercised the discretion in favour of the plaintiff evidently believing that the question, of encroachment could only be decided by neces­sary measurements on the spot. The two at­tempts made by the Commissioner proved abortive. The result of the first measurement could not be accepted as the measurements were not done in a manner which could be regarded as satisfactory. The second measurement was without any reference to the plan that had been prepared in the partition case. In not referring to the plan, the Commissioner ignored the ex press directions of the Court. It was not certain whether the cadastral map which he used when making the measurement had been duly corrected. It was for this reason that the Court declined to act on the second report also. In these circumstances the request of the plaintiff for issue of a fresh commission was reasonable. In declining to issue the commission, the trial Court did not exercise its discretion judicially or in accordance with sound legal principles. He was, therefore, guilty, of an error of law. The result of the error has been that there was no evidence on the basis of which the issue could have been decided. Plaintiff could not be blamed for the failure on the part of the Commissioner to make his measurements with reference to the partition map or for his disregard of the ^directions issued by the Court. [6] The learned Subordinate Judge is also not correct in the view that the only way open to the plaintiff to prove encroachment was by proof of actual disturbance of existing bound, arise. The learned counsel for the respondent has not made any attempt to support the appel­late order on this basis. We think the error of law which has been referred to above, has vitia­ted the orders of the Courts below and justifies their reversal. [7] This appeal is, therefore, allowed. The orders of the Courts below dismissing the suit are reversed and the case is remanded to the trial Judge under S- 151, Civil P. C. for fresh disposal according to law after issuing a fresh commission for ascertaining the boundaries of dags Nos. [7] This appeal is, therefore, allowed. The orders of the Courts below dismissing the suit are reversed and the case is remanded to the trial Judge under S- 151, Civil P. C. for fresh disposal according to law after issuing a fresh commission for ascertaining the boundaries of dags Nos. 1370, 1633 with reference to the map prepared at the revenue partition case No, 1 of 1933 34 or a certified copy thereof and for finding out the encroachment and its extent, if any, by defendant l from the land of dag NO. 1370. The costs of the litigation up to this stage shall be costs in the case. [8] Thadani C. J- I agree. Appeal allowed.