Short Note : 1. This second appeal is at the instance of the defendant against whom the claim of the plaintiff for ejectment after demolishing the superstructure on the disputed portion of the land has been passed by the lower appellate Court after reversing the judgment and decree of the trial Court. 2. The only contention which could be raised at this state in second appeal was that the judgment and decree impugned are bad in law for the reason that they are based on the invalid report of the commissioner appointed by the Court for local investigation. The objection to the report was that the commissioner made investigation on spot behind the back of the appellant without issuing any notice or intimation. It is apparent from the report of the commissioner that no such notice was issued to the appellant. From the perusal of the order sheet, it is also found that after the receipt of the report, the trial Court directed that the commissioner be summoned as Court witness for being examined in respect of his report. It is also apparent that he was ultimately not examined and the suit was decided after recording the evidence produced by the parties. It would be significant to mention that the appellant had filed specific objection to the report of the commissioner before the trial Court by contending that the commissioner acted against all principles of natural justice by making inquiry behind the back of the appellant without giving any intimation. In the objection, the defendant had also claimed that in any case the commissioner should be examined. 3. The lower appellants Court had however, rejected this objection by observing that even if the commissioner made inquiries on spot without issuing any notice or giving any intimation to the appellant, the report did not become bad and similarly the omission to examine the commissioner despite the order having been passed in that respect to examine him as Court witness did not affect the validity of the report and the same could be relied for decreeing the claim of the plaintiff. 4. 4. The learned counsel for the respondent-plaintiff, however, stated that the report of the commissioner was the only material evidence on which basis the decree for ejectment by holding the defendant as en-coacher on the suit land has been passed and he was not in a position to sustain the judgment and decree impugned if the aforesaid report was to be excluded on the ground that it was bad in law for want of notice to the other side and non-examination of the commissioner and in that circumstance a fresh commission may be issued. The learned counsel for the respondent, however, contended that the plaintiff has stated on oath that the commissioner did send his peon to call the defendant before proceeding to commence the measurement on spot and therefore, the objection regarding the absence of notice is not tenable. On behalf of the appellant, it was contended that mere self-serving statement of the plaintiff himself in his own favour was of no avail when neither the peon, who was alleged to have been sent nor the commissioner was examined. From the perusal of the judgment impugned, it is found that the lower appellate Court had also not relied on the aforesaid statement, in the absence of written intimation or the evidence of proper and competent person but it was, however, of the opinion that no notice was at all necessary. 5. In my opinion the objection raised on behalf of the defendant is material and a fresh commission will have to be issued for ascertaining the fact and extent of the encroachment, if any. However, looking to the fact that this appeal could reach its turn for hearing by this Court for fresh decision after obtaining the report of the commissioner, it would again take much time. It will be proper to set aside the judgment and decree of the lower appellate Court and remand the first appeal to the lower appellate Court with the direction that the said Court should issue a fresh commission. The commissioner so appointed shall make investigation on spot with due notice to the parties and shall submit has report to the lower appellate Court, who will proceed to decide the appeal after taking the report of the commissioner on record in accordance with the provisions contained in the Code of Civil Procedure in this respect. The commissioner so appointed shall make investigation on spot with due notice to the parties and shall submit has report to the lower appellate Court, who will proceed to decide the appeal after taking the report of the commissioner on record in accordance with the provisions contained in the Code of Civil Procedure in this respect. If necessary, the lower appellate Court may also examine the commissioner. Appeal partly allowed.