Judgment U.N. Sinha, J. This application has been filed by defendants nos. 1 and 2 it is directed against an order, of the court of appeal below remanding the suit to the trial court. The plaintiffs' suit having been dismissed he had appealed in the court of appeal below and it appeared that the suit has been remanded only on one ground. The plaintiff had made out a case in a suit for declaration of title and for confirmation of his possession (or in the alternative, for recovery of possession) that the disputed land had been amalgamated with his other lands and there was no mark of demarcation between them. He had also made out a case that his house stood on a portion of the disputed land. For this purpose the plaintiff had adduced oral evidence and a pleader commissioner had also been appointed by the trial court for making measurement on the spot and for submitting his report. It appears that according to the commissioner's report, he had found the disputed land amalgamated with the plaintiff's other lands; but the trial court did not accept the pleader commissioner's report and map on grounds mentioned in its judgment. The court of appeal below was of the opinion that the reasons given by the trial court for rejecting the commissioner's report and the map were not very sound and convincing. Instead of considering the materials on record himself the learned Additional Subordinate Judge has, thereafter, stated that in the circumstances of the case, the trial should have either issued a fresh commission for inspection of the disputed land or it should have directed the same commissioner to file a fresh report after making measurements with the help of the original survey map. Only on this ground the suit has been remanded to the trial court, directing it to obtain a fresh inspection report from a pleader commissioner. 2. In my opinion the court of appeal below was in error in remanding the suit on the ground mentioned by it. If the trial court was not in a position to accept the commissioner's map and report on any ground, it was open to the court of appeal below either to concur in this decision or differ from it. 2. In my opinion the court of appeal below was in error in remanding the suit on the ground mentioned by it. If the trial court was not in a position to accept the commissioner's map and report on any ground, it was open to the court of appeal below either to concur in this decision or differ from it. No circumstance exists, in my opinion, for upholding the order of remand of the suit to the trial court in this case and the judgment and decree of the learned Additional Subordinate Judge must be set aside. Learned counsel for the opposite party has relied upon the case of (1) Deb Narayan Kundu V. Amrita Lal Sil, reported in A.I.R. 1938 Patna 421. I do not think that this decision can be of any assistance to the learned counsel, as that case was decided on an interpretation of Order XXVI of the Code of Civil Procedure. The appeal is, therefore, remanded to the court of appeal below for rehearing in accordance with law. The appeal should now be heard by some other learned Judge, as the then Additional Subordinate Judge has expressed his opinion on several matters arising on the evidence on record and it is a fit case in which the court of appeal below now should apply a fresh mind to the respective cases of the parties. 3. The application is, therefore, allowed. There will be no order for costs. Application allowed.