Judgment K.P. Singh, J. 1. THIS is a defendant's second appeal arising out of a suit for permanent injunction restraining the defendants from interfering with the possession of the plaintiff over the disputed trees standing in plot no. 236/3 new plot no. 290. 2. IT appears that the plaintiff had claimed title to the disputed plot no. 236/3 new plot no. 290 and had alleged that the disputed trees stood therein, and in the alternative it had been alleged that if the disputed trees did not stand over plot no. 290, and stood on plots nos. 291 and 292, the plaintiff had got right and title to the disputed trees by virtue of being owner due to adverse possession for more than 12 years. The claim of the plaintiff was contested by the defendants on the ground that the disputed trees stood in plots nos. 291 and 292 which were his grove, and that the plaintiff's claim was barred by the provisions of section 49 of the UPCH Act, and various other pleas were taken. 3. THE trial court had dismissed the plaintiff's suit and in appeal the plaintiff has succeeded. Now aggrieved by the judgment of the appellate court, the defendant has approached this Court under section 100 of the Code of Civil Procedure. 4. THE learned counsel for the appellant has contended before me that the lower appellate court has acted illegally in holding that the disputed trees stood in plot no. 236/3. According to him, in view of the confirmed map and report of the Commissioner, the disputed trees stood in plots nos. 291 and 292, and in the view of the matter the finding recorded by the lower appellate court that the disputed trees stood in plot no. 236/3, is due to the mis-appreciating evidence on record. The learned counsel for the plaintiff-respondent has contended that the lower appellate court has recorded a categorical finding of fact that the disputed trees stood in plot no. 236/3, and the decree passed by the lower appellate court restraining the defendants from interfering with the possession of the plaintiff over the trees in dispute is fully justified in the circumstances of the present case. 5. I have considered the contentions raised on behalf of the parties. 6. 236/3, and the decree passed by the lower appellate court restraining the defendants from interfering with the possession of the plaintiff over the trees in dispute is fully justified in the circumstances of the present case. 5. I have considered the contentions raised on behalf of the parties. 6. IT is proper to quote the following finding recorded by the lower appellate court:- "...............Now as far as the report of the Commissioner Sri Uma Kant Khare is concerned that too cannot be relied upon. The Commissioner Sri Uma Kant Khare has himself said in his report that it was after a great search that he could lay hands upon two fixed points B and C, and these were sufficiently far away from the plots in dispute. He, therefore, had to take the help of intermediate fixed points T E F G H. Since the fixed points taken by the Commissioner were at quite a distance away from the disputed plots the likelihood of his committing an error cannot be entirely ruled out. I am, therefore, not prepared to place reliance on the above report of the Commissioner Sri Uma Kant Khare. Therefore, after considering the entire evidence on the record I am convinced that the disputed trees stand in plot no. 236/3 now plot no. 290, of which the plaintiff-appellant was the bhumidhar." To my mind the approach of the lower appellate court is wholly illegal on the facts and circumstances of the present case. The appellate court, being last court of fact should record categorical finding of fact. It cannot base its judgment upon the likelihood of committing an error by the Commissioner. It was the duty of the lower appellate court to have pointed out specific mistakes committed by the Commissioner in preparing the map and report. Unless the appellate Court had arrived at a positive conclusion, it had no jurisdiction to brush aside the map and report prepared by the Commissioner. Moreover, even if the map and report prepared by the Commissioner were wrong, the plaintiff's claim that the disputed trees stood in plot in no. 246/3 now plot no. 290 could not be substantiated, unless another map is on the record to indicate that those trees stood in plot no. 290 claimed by the plaintiff. The appellate court has arrived at arbitrary conclusion and its judgment cannot be sustained in second appeal. 246/3 now plot no. 290 could not be substantiated, unless another map is on the record to indicate that those trees stood in plot no. 290 claimed by the plaintiff. The appellate court has arrived at arbitrary conclusion and its judgment cannot be sustained in second appeal. The appellate court has not based its judgment on the finding that the plaintiff had perfected title to the disputed trees even if they stood in plots 291 and 292. In this view of the matter I have no option but to set aside the judgment of the appellate court and remand the case to the lower appellate court for deciding the claims of the parties afresh in the light of their pleadings and evidence on record. It would be proper for the appellate court to have the map prepared afresh if it finds mistake in the map already existing on record, and unless the spot situation clearly indicates that the disputed trees stand in plot no. 236/3 now plot no. 290 or the plaintiff succeeds in establishing his claim to the disputed trees on the basis of the adverse possession, no decree can be passed in favour of the plaintiff. Since the case is going back to the lower appellate court, it would be open to the parties to put forward their pleas regarding bar of section 49 of the UPCH Act, and it would be decided in accordance with law by the lower appellate court afresh. 7. IN the result, the second appeal succeeds and the impugned judgment of the lower appellate court dated 25-8-1975 in Civil Appeal No. 41 of 1971-Bharose v. Munesar-is hereby set aside and the case is remanded back to the lower appellate court to be restored to its original number. The lower appellate court should decide the claims of the parties in the light of the observations made above. There would be no order as to costs. Appeal allowed.