JUDGMENT Deoki Nandan, J. - In the suit giving rise to this Second Appeal by the plaintiff, his case was that his house shown by the letters A. B. C. D., and the land C..D. E. F., were situation partition plot no. 434 in the Abadi of village Sherpur Kalan in district Ghazipur. After the settlement of issues, on an application 41-C made by the plaintiff, the trial court issued a survey commission during May, 1956 to an Advocate for preparing a site-plan on scale and plotting out the partition. Khasra Nos. 434, 435, 433, 431 and 430, besides showing the material things pointed out by either of the parties on the spot. The Commissioner was required to submit his report by the 9th July, 1956. On 9th July, 1956, the time to do so was extended upto 9th August, 1956, on which date the Commissioner returned the writ unexecuted. The time for the execution of the commission was thereupon extended upto the 20th September, 1956. The plaintiff was directed to make arrangements for getting the commission executed during that period, failing which the plaintiff was warned that "his application for measurements will be liable to be rejected. "On 8th September, 1956, an application was moved by the plaintiff for a direction that the commissioner may not go to the spot to execute the commission, as land was under water. The time for execution of the commission was extended upto the 20th October, 1956. On that date the Commissioner applied for further time to execute the commission on the ground that the land was still under water. Time was extended upto 20th November, 1956. At this stage the trial court's file appears to have been requisitioned by the lower appellate court in connection with a miscellaneous appeal. The file was returned to the trial court on 14th August, 1957 after the decision of the appeal. The trial court directed the Commissioner to submit his report by 25th September, 1957, which date was extended to 5th October, 1957, then to 20th October, 1957, and thereafter to 29th October, 1957, and once again, on the Commissioner's request, to the 6th November, 1957, and then to the 8th November, 1957, on which dale the Commissioner filed his report. That report appears to have been set aside by an order dated 8th January, 1958. 2. That report appears to have been set aside by an order dated 8th January, 1958. 2. There was an application for amendment of the plaint moved thereafter, which was allowed on 7th February, 1958. Fresh issues were framed on 14th January, 1959. On 9th April, 1959, the trial court ordered that without measurement and map on scale, the real controversy between the parties cannot be decided and directed the issues of commission to the Court Amin for preparation of a scale map with the help of partition and survey maps. The survey map was summoned. The Amin does not appear to have filed the report within the time allowed by the Court. His explanation was called for. The time for filing the report was extended up to 25th May, 1959, but on the Amin's application, it was again extended up to 10th July, 1959. On 7th July, 1959, the Amin applied that the plaintiff should be asked to tile a supplementary Khasra. The plaintiff was then required to do so by 10th July, 1959. On 10th July, the plaintiff moved an application to direct the Amin to prepare the map with the help of partition Khasra. On 25th July, 1959, the Amin was directed to file his report positively by 30th July, 1959, on which date the Amin applied for one month's time to do so. On that he was allowed to do so by 24th August, 1959, positively. On that date the Amin again applied for one month's time to file the report on the ground that it was not possible to make measurements, as the land was submerged in rainy water. The court directed the Amin to submit his report by 14th October 1959. On 14th October, the Amin applied for one month's time to tile his report. On 24th October, 1959, the court directed the Amin to make a report on certain points and the time for filing his report was extended upto 28th November, 1959. The report not having been filed on that date, the court extended the time up to 6th December, 1959. The report was not submitted even on that date. On 7th December, 1959, the court asked for the Amin's explanation and directed him to file the report by 17th December, 1959. The report not having been filed on that date, the court extended the time up to 6th December, 1959. The report was not submitted even on that date. On 7th December, 1959, the court asked for the Amin's explanation and directed him to file the report by 17th December, 1959. The Amin made an application dated 11th December, 1959, on which court gave him a warning and directed that the report be filed by 2nd January, 1960. On which date, the Amin made an application to the court to direct the plaintiff to supply him wax paper. Ultimately the Amin hied his report on 9th January, 1960. By an order dated 7th March, 1960, the trial court set aside the Amin's report and directed the plaintiff to take steps for issuing another commission. 3. The plaintiff again applied for the issue of fresh commission to the Amin. The Amin was required to make his report by the 30th of April, 1960, on which date he applied for one month's time, but he was allowed time up to 17th May, 1960. On 16th May the Amin again applied for extension of time, which was allowed up to 7th July, 1960. On 7th July, 1960, he again applied for one month's time, which was allowed and he was directed to submit his report by 8th August, 1960. On 8th August, 1960, the Amin reported that measurements could not be carried out during the rainy season. Case was ordered to be put up on 12th September, 1960. On 12th September, 1960, the court directed the return of the papers to the Amin, who was required to submit his report by the 12th October, 1960. On 12th October, the Amin applied for extension of time to file the report. Time was extended upto 22nd October, 1960. Amin again applied for extension of time. He was allowed to file the report by 1st November, 1960, on which date the Amin filed his report and map, on which objections were invited. An allegation was made by the defendant that the Amin had not made any measurements on the spot in connection with his second report, which was submitted by him on 1st November, 1960. On 16th February, 1961, the court allowed the defendant to have the Amin's map verified by some one else, on which an Advocate Commissioner was appointed by order dated 23-2-1961. On 16th February, 1961, the court allowed the defendant to have the Amin's map verified by some one else, on which an Advocate Commissioner was appointed by order dated 23-2-1961. The Commissioner returned the Parwana unexecuted. Commission was issued to another Advocate, who was required to submit his report by 24th May, 1961, He filed his report on 30th May, 1960. On 9th September, 1961 the parties counsel agreed that they will give certain fixed points, after seeing the complete partition map, for carrying out the measurements. The Amin's map and report were thereupon set aside on the statement of the parties' counsel, vide paper no. 139-A. 4. A fresh commission was issued to the Amin directing him to carry out the measurements in the light of the statement of the parties' counsel, vide paper no. 139-A. The Amin did not file his report within the time allowed by the Court. On 2-1-1962, he was asked to explain, and to submit his report by the 30th January, 1962, on which date, the court directed the issue of Parwana to the Amin again, returnable by 1st March, 1962. On that date, the Amin sought one month's time, which was allowed. On 27th March, the Amin again sought extension of time on the ground that survey could not be done on account of the standing crops. On 11-4-1962, the court observed that the Amin had reported that survey was not possible before June, as there was water logging at certain places. The court observed that if survey could not be done at that moment, it would never be done through the year, as rains will set in after June and it would become impossible to execute the commission. The Amin submitted a report on 25th April, 1962. 5. The court ordered on 25th May, 1962 that the plaintiff should deposit Rs. 30/- as fees, as some Vakil Commissioner will have to be appointed to execute the Commission. On the deposit having been made, commission was issued to an Advocate on 1st June, 1962 and he was directed to submit his report by the 24th July, 1962. On that date, the Commissioner applied for time, which was allowed up to 20th August, 1962. On the deposit having been made, commission was issued to an Advocate on 1st June, 1962 and he was directed to submit his report by the 24th July, 1962. On that date, the Commissioner applied for time, which was allowed up to 20th August, 1962. On 20th August, 1962, the Advocate reported that the map in the collectorate was torn, whereupon the court allowed time to the plaintiff to take steps for summoning the map from Lucknow. Some map was filed on 25th September, 1962, which was ordered to be sent to the Commissioner and he was required to submit his report by 25th October, 1962. On that date the Commissioner reported that survey was not possible due to water logging. Time was thereupon extended up to 1st December, 1962. On 24th November, 1962, the plaintiff applied that survey was not possible on account of the water logging, whereupon the court extended the time for submission of the report by the Commissioner up to 3rd January, 1963. On that date, the Commissioner applied for one month's time to file the report and time was allowed up to 2nd February, 1963. On that date, the Commissioner returned the writ. On 2nd March, 1963, the court noted that the Commissioner had reported that measurements were not possible due to water logging and directed the Commissioner to do the measurements in the month of April and submit the report on 19-4-63. On that date the commissioner applied for one month's time, but the court allowed 20 days with the warning that no more time would be given. The report was not submitted on 9th May, 1963. The court directed the Commissioner to do so within seven days, by 16th May, 1963, the court observed that the Commissioner bad not filed the report and directed that he may be reminded to do so within one month and no further time will be given, and that if the parties will not get the measurements done, the suit will be dismissed. On 4th July, 1963, the court passed the following order :- "154-C. Commissioner has returned the writ because the measurement is not possible, due to presence of water on the spot. It appears rather strange that the rain water was present even in the month of May and June on the spot. On 4th July, 1963, the court passed the following order :- "154-C. Commissioner has returned the writ because the measurement is not possible, due to presence of water on the spot. It appears rather strange that the rain water was present even in the month of May and June on the spot. I am not prepared to believe the said fact that the rain water remains present on the spot throughout the year and the same has made the measurement impossible. To my mind, either the commissioner did not desire to execute the commission and did not take pains to visit the spot or the parties did not show any interest in getting the measurements done. The circumstances show that the plaintiff does not appear to be interested in the suit and he wants to drag the proceedings indefinitely on the ground of measurement only. He does not deserve any sympathy and there is no other alternative, but to dismiss the suit in default of the plaintiff." 6. An application to set aside the order, under order 9 Rule 9 C.P.C., was dismissed on 9th December, 1963. That order was made the subject matter of an appeal by the plaintiff, being Misc. Civil Appeal No. 9 of 1964. By judgment dated February 20. 1965, the lower appellate Court allowed the appeal and set aside the order dated 4th July, 1963, restored the suit to its original number for being tried on merits after giving the parties an opportunity to lead such oral and documentary evidence as they wish to lead in support of their case. Nevertheless, it was expressly made clear in that order that the plaintiff shall not be allowed any further opportunity for having the land surveyed by a commissioner appointed by the Court. 7. The suit was, accordingly, restored, and, by its judgment dated February 19, 1966, the trial court dismissed it on merits. Since the dispute in this appeal has been confined to the land 'CDEF' it is not necessary to refer to the findings of the trial court on other matters. The issues relating to the land 'CDEF' were issues nos. 1, 9, 11, and 12 read as follows :- 1. Whether the plaintiff has a right of way through the land CDEF in the plaint map ? If so, has the right been infringed by the construction DEGH by the defendants ? 2. The issues relating to the land 'CDEF' were issues nos. 1, 9, 11, and 12 read as follows :- 1. Whether the plaintiff has a right of way through the land CDEF in the plaint map ? If so, has the right been infringed by the construction DEGH by the defendants ? 2. Whether the land CDEF belongs to the plaintiff or to the defendants ? 3. Whether the breadth of land ECEF was 4 feet 9 inches and whether new constructions have been made therein by the defendants during the pendency of the suit ? 4. Whether any new drain has been opened by the defendants during the pendency of suit in the land CDEF and is liable to be closed? These issues were taken up together for consideration by the trial court. It observed that originally the plaintiff came to court with the case that the land 'CDEF' was the common land of the plaintiff and the 1st defendant and was in the nature of a lane between their houses, through which they flowed water of there houses out and the houses were also repaired. It was also used as a passage by the parties and the public. The plaintiffs complaint was that his right to flow the water from his house and to repair the wall of his house has been interfered with. But, observed the trial court, after three years of the institution of the suit, a very 'drastic amendment' was applied for by the plaintiff and allowed by the court. According to the amended case of the plaintiff, the lane 'CDEF' was his exclusive property and part of partition plot no. 434 on which his house was also situate. The trial court observed that "title to this gali was asserted very late" described as 'Gali mustarqa.' The trial court then referred to Ext. 4 and 5, being applications dated 22nd and 26th January, 1956, respectively, in which it was stated that to the south of bis plot no. 434, there was a lane about 2 cubits wide on which the 1st defendant had dumped earth of his old house which was obstructing the flow of the water from his house. The trial court noticed that there was no assertion that the lane belonged to the plaintiff. 434, there was a lane about 2 cubits wide on which the 1st defendant had dumped earth of his old house which was obstructing the flow of the water from his house. The trial court noticed that there was no assertion that the lane belonged to the plaintiff. On the other hand, noticed the trial court, the defendants had consistently been claiming that the lane in question belonged to them. According to the trial court, this showed "serious inconsistency in the case of" the plaintiff. 8. With this preface, the trial court proceeded to consider the plaintiff's case on the said four issues on merits and posted before it the question whether the plaintiff has succeeded in proving that the lane in question is a part of the plot no. 434 and belonged to him, it being undisputed that the plot no. 434 belonged to the plaintiff. According to the trial court in view, of the denial by the defendants of the plaintiff's case that the lane in suit lies in plot no. 434, "it was incumbent for the plaintiff to get the survey map prepared to locate the lane in question", and "in spite of the repeated opportunities given the plaintiff failed to get a map prepared from fixed points" The trial court noticed the direction of the lower appellate court in its judgment dated 20th February, 1965, that no fresh opportunity would be given to the plaintiff to have the lane surveyed by an issue of commission in view of his laches. The trial court then observed : "The plaintiff, however, selected a back door method. He filed a map and report prepared by Sri Sant Prasad (Ext. 8 and 9) a private Amin showing the lane and construction in suit ins plot no. 434, Sant Prasad was examined as P. W. 2 in the case. He has admitted in his cross-examination that he bad not given any information of his visit to the defendants. He further stated that a partition map had been supplied to him at the spot which is not pleaded on the file. Considering the reluctance, of plaintiff in getting a survey map prepared through Court Amin and after going through the statement of P. W. 2, Sant Prasad I am not prepared to accept the map and report as correct. He further stated that a partition map had been supplied to him at the spot which is not pleaded on the file. Considering the reluctance, of plaintiff in getting a survey map prepared through Court Amin and after going through the statement of P. W. 2, Sant Prasad I am not prepared to accept the map and report as correct. As a professional Amin getting a handsome fee for the work done, he was bound to support the plaintiff. And the trial court went on to conclude that : "If this map goes away there is not any evidence to show that gali in question is part of plot no. 434." 9. Having said so much, the trial court was not prepared to accept the contentions of the learned counsel for the plaintiff based on the partition khasra and the map that the gali in suit must fall in plot no. 434, for, again, according to the trial court, "it is very difficult to rely on a mathematical calculation when a positive and definite result could be achieved by measurement from fixed points." This is followed by the finding that the plaintiff's case "that he is owner of the gali in suit because it is part of partition plot no. 434, totally fails". 10. The trial court next proceeded to consider the question whether the plaintiff has succeeded "in proving his title to the lane in question irrespective of its being in plot no. 434." The trial court again referred to the case originally pleaded by the plaintiff and the application dated 26th January, 1955. Ext. 11, already referred to above. It, then proceeded to observe that: "P. W. 1 Bans Narain deposed that at the time of institution of the suit, he knew that the land lying in the south of his Baithka belong to him and also informed his counsel this fact. He further admitted that he had himself read the plaint but forgot to point out that there was not any reference to lane." The trial court found the said statement to be wholly unreliable, and reached the conclusion that the plaintiff's case that he was the exclusive owner of the gali was an afterthought. 11. He further admitted that he had himself read the plaint but forgot to point out that there was not any reference to lane." The trial court found the said statement to be wholly unreliable, and reached the conclusion that the plaintiff's case that he was the exclusive owner of the gali was an afterthought. 11. Having said so much, the trial court proceeded on merits to observe that "even if we consider on merits we find that the plaintiff has failed to prove by cogent evidence the existence of gali in suit and his possession over it." This is followed by a reference to the evidence of P. W. Bans Narain and thereafter a reference was made to paragraph 2 of the plaint wherein it was stated that gali in question was coming down from time immemorial but a different case was set up in plaint when P. W. 3, Mukteswar Rai, stated that gali in suit existed for the last 30 years and prior to that there was house and mandhai which were touching the house of the first defendant. P. W. 4, Vibhuti Rai is also said to have made a similar statement about the existence of the gali for the last 30 years. This, according to the trial court, discredited plaintiff's contention in plaint that the gali in question was coming down from times immemorial. According to the trial court: "In a sense the plaintiff was compelled to take up the case of having a gali in question about 30 ye:rs back because he found himself unable to prove it on the basis of measurement. So far as the plaintiff's allegation to gali being very old is concerned, we find that it has not been mentioned in the partition map. Admittedly, village was partitioned in 1910. If the gali did not exist in 1910, it is very difficult to accept that it is coming since time immemorial." 12. The trial court then proceeded to consider the question about the width of the lane. According to it, the original stand in the plaint was that the 'gali' was two cubits wide. Subsequently, the plaint was amended and the width of gali was changed to 4 ft. 9 inches. The trial court then noticed the case of the 1st defendants, which was to the effect that the alleged gali did not exist at all. According to it, the original stand in the plaint was that the 'gali' was two cubits wide. Subsequently, the plaint was amended and the width of gali was changed to 4 ft. 9 inches. The trial court then noticed the case of the 1st defendants, which was to the effect that the alleged gali did not exist at all. In fact, it was the land left fay the defendants in the north of their house at the time of its reconstruction. In Ext. 4, filed by the plaintiff himself, the width of the gali was shown to be 2 cubits only. According to the trial court; "Thus from the own paper of the plaintiff it is clear that the gali in question was not 4 ft. 9 inches wide." 13. The trial court then considered the question of possession over the land in suit. It observed that: "It is admitted that now it is in possession of the defdt. Therefore it was the duty of the plff. to prove that they had been in possession of the gali in question until dispossession some 12 years back." The trial court referred to the statement of P.W. 1, Bans Narain that when the 1st defendant demolished the northern portion of their house in 1955, they placed a tatti at the eastern end with the plaintiff's permission. Such an allegation have not been made in the plaint nor in the complaints made by Exts. 4 and 5 against the fixation of the latti, the trial court disbelieved the plaintiff's evidence. 14. The trial court then took up the consideration of the plaintiff's case that the gali in question was being used as a 'rasta' by the parties and the public. According to it, there was no definite evidence from the plaintiff's side and "it is very difficult to believe that a gali hardly 2 cubits wide could be used as a 'rasta' when it has houses on both the sides". The trial court then referred to the statement of P. W. 1, Bans Narain, and stated that he did not depose that the gali was being used as a rasta but he simply stated that it was used for flow of eves water and repair of walls. According to the trial court, not even P. W. 3. The trial court then referred to the statement of P. W. 1, Bans Narain, and stated that he did not depose that the gali was being used as a rasta but he simply stated that it was used for flow of eves water and repair of walls. According to the trial court, not even P. W. 3. Mukteshwar Rai, made any statement on the point; and although he stated in cross-examination that he used to pass through the gali until 12 years back ; he also stated that originally the gali was closed on the western end. According to the trial court, P. W. 4, Vibhuti Rai, also did not depose anything about the user of the gali in question and that, therefore, there was nothing to show that the gali was used as a. 'rasta' by the parties or the public. Further, it was not proved "by cogent evidence that the plaintiff used to repair his walls and his eves water used to flow through that gali". According to the D. W. 2, Ram Braksha Rai, eves' water of the plaintiff's house used to fall into his courtyard and the plaintiff never repaired his wall, as claimed by him. 15. Lastly, the trial court noticed that the plaintiff had alleged that the first defendant had during pendency of the suit made certain constructions and had opened a 'naabdan' and a door in the gali. This part of the plaintiff's case was also not believed by the trial court and it held it proved "that the 'naabdan' and door was not opened during the pendency of the suit" not was their any evidence regarding the opening of the door. About the latrine, the trial court found that it was constructed in place of an old latrine and was, thus, not a new one. In the result, the trial court found that the land 'CDEF' does not belong to the plaintiff but belongs to the 1st defendant; that the plaintiff has no right of way through it, and, therefore, a question of any infringement thereof did not arise; and that there was no lane on the land 'CDEF' 4 ft. 9 inches wide and it is wrong to say that the defendants had made any construction or had opened any door during the pendency of the suit". 16. 9 inches wide and it is wrong to say that the defendants had made any construction or had opened any door during the pendency of the suit". 16. The lower appellate court disposed of the matter by saying that it was precluded from questioning the view taken earlier in the judgment dated 20th February, 1955, in Misc. Civil Appeal No. 9 of 1964 and could not, therefore, allow the plaintiff any fresh opportunity to get the land surveyed by a commissioner appointed by the court in order to find out whether the land 'CDEF' formed a part of partition plot no. 434. And so far as the other evidence on the point was concerned, it endorsed the trial court's finding for the reasons given by it without giving any reason of its own, except for observing that it is true that the existence of disputed lane on the land 'CDEF' appears on the report of Sri Girdhar Das, Vakil-Commissioner (paper no. 9-C) and Sri Shamsher Bahadur, Vakil-Commissioner, (paper No. 46-C), but there is nothing in their reports to show that the appellant is the owner of the disputed land. And in the result, holding that it was not proved from the evidence on record that the plaintiff is the owner of the disputed land 'CDEF' or in possession as such, it dismissed the appeal and maintained the dismissal of the suit. 17. Learned counsel for the plaintiff appellant urged at the outset that from the proceedings taken by the trial court, between 1956 and 1963, for the issue of survey commission to find out whether the land 'CDEF' formed part of the partition plot no. 434 or not, it was clear that plaintiff could not be blamed for not having taken the necessary steps for having the land in suit surveyed through the agency of the Court and the fault lay, if at all, not with the plaintiff but with the machinery of the court. The plaintiff could not be penalised for the failure of the court to have the land surveyed by a competent person appointed for that purpose, and if the court found that it was not possible to find cut whether the land in suit formed part of the partition plot no. The plaintiff could not be penalised for the failure of the court to have the land surveyed by a competent person appointed for that purpose, and if the court found that it was not possible to find cut whether the land in suit formed part of the partition plot no. 434, by a survey of the land, the plaintiff's suit could not be dismissed on the ground that the plaintiff had failed to have that dene, for a party could not be required to do the impossible. 18. Having gone through the proceedings taken by the trial court, as recorded in the English note of the learned Munsif, over a period of about 7 years, which have been referred in some detail in the earlier part of this judgment, I find that the complaint so put forward for the plaintiff-appellant is not far wrong. After all, it is an officer of the court to whom a commission is issued. The choice of the person to whom the commission is issued rests with the court. The remuneration of the commissioner is fixed by the court. The commissioner is to execute the commission after notice to the parties of the date and time appointed by him for the purpose it is issued. The commissioner can execute the commission even if a party neglects to attend at the time and place fixed by the commissioner for the execution of the commission. The plaintiff had done all that he was required to do in law by depositing fee of the commission, every time that he was required to do so. Surely, the commissioner could not say that he could execute the commission only if the plaintiff carried him on his shoulders to do so. The commissioner has his own legs to walk with and is supposed to have his own mind to work with. If all the commissioners appointed by the court reported their failure to execute the commission one after another, the only inference which could be drawn was that the performance of the task which the court had asked them to do was impossible. The dismissal of the suit by the order dated 4th July, 1963, was wholly unjustified, illegal and improper. If all the commissioners appointed by the court reported their failure to execute the commission one after another, the only inference which could be drawn was that the performance of the task which the court had asked them to do was impossible. The dismissal of the suit by the order dated 4th July, 1963, was wholly unjustified, illegal and improper. If the court found that the survey which it wanted to be done was impossible, it ought to have proceeded to call upon the parties to produce such evidence as they wanted to, and to decide the suit on the evidence so produced. Surely, it did not require seven long years to find that out. 19. Be that as it may, the judgment of the trial court after the restoration of the suit makes things worse. The court had thought a survey to be necessary for finding out whether the land 'EDEF' was part of the partition plot no. 434. It issued commissions to several persons repeatedly from 1956 to 1963 for doing that. They tailed to do what the court wanted them to do. The Commissioners were appointed by the court; They were 'officers' of the court. Placed in that situation and still advised, that it was necessary to demonstrate by survey that the land 'CDEF' fell within partition plot no. 434, the plaintiff got hold of a man, who could do what the court wanted to get done by the commissioners appointed by it. That man did the job and produced the result and appeared in the witness box and stated that the result produced by him was true. He was Sant Prasad, P. W. 2 But the trial court rejected it on the ground of plaintiff's reluctance in getting the survey map prepared through a court amin. The least that I can say about this approach of the trial court, is that it is wholly perverse. A man comes to court, waits and waits and waits for seven long years for having the survey done through officers of the court and when they fail to do anything or to achieve any result, to tell him that the result produced by a man appointed by him for the purpose was liable to be rejected only because he was not a man appointed by a court, is, in my opinion, wholly unreasonable. It would be a different matter, however, if the result produced by Sant Prasad P. W. 2, was liable to be rejected for reasons of proved defects or inaccuracies. On this aspect also, the trial court acted wholly unreasonably in rejecting the report on the further ground that as a professional amin Sant Prasad must have got handsome fee for the work done, and was bound to support the plaintiff. This observation may be true or may not be true, but was certainly not based on any evidence on record, and, at any rate, as a court of justice, before making any observation against the character of a witness, the trial court should have had something more before it than a mere suspicion of this kind. For if suspicions were to be substitute for reasons, everything about witnesses and the men who frequent the courts is now-a-days suspect. The honesty of the court amin or the vakil commissioner appointed by the court is also not above suspicions of this kind. 20. As if this was not all, having held the map prepared by Sant Pd., P.W. 2, to be unreliable, the Trial Court proceeded to hold that the question whether the land in suit formed part of partition plot No. 434, could not be decided even by mathematical calculations, made on the basis of the partition khasra and that the only method of deciding it was actual survey and measurement on the spot, and that the plaintiff not having got it done, his case that he was not the owner of gali in suit, on the footing that its land formed part of partition plot No. 434, was bound to fail. In short, the plaintiff's case on this point failed because of the fact that the Trial Court could not get it fixed by survey and measurement on the spot that the land 'EDEF' formed part of partition plot No. 434. I consider this to be a travesty of justice. 21. The further reasons given by the Trial Court for not accepting the plaintiff's case are equally incorrect and improper. The result of amendment of pleadings is that the amended pleading supplants the original pleading completely. Sometimes amendments are allowed to correct an error. I consider this to be a travesty of justice. 21. The further reasons given by the Trial Court for not accepting the plaintiff's case are equally incorrect and improper. The result of amendment of pleadings is that the amended pleading supplants the original pleading completely. Sometimes amendments are allowed to correct an error. If an error is allowed to be corrected, you cannot say that the matter brought in by correction cannot be believed to be true because the party had originally stated something which was inconsistent therewith. If the Court thinks that the plea sought to be taken by an amendment is an after thought, a request for amendment is refused on the ground that it is not bona fide. But once a party is allowed to amend its pleadings, you cannot say that the amended pleading is incorrect for being inconsistent with the original pleading. The fact that the land is shown as a gali mushtarqa in the plaint map even after the amendment of the body of the plaint only shows the carelessness of the person who conducted the plaintiff's case. For, surely, it could not have been said that even after having the body of the plaint amended by pleading that the land 'CDEF' was his exclusive property, the plaintiff intended to also plead that it was a common lane of the parties, even after the amendment. 22. This, however, does not necessarily mean that the case of the plaintiff that the land 'CDEF' was his exclusive property stands proved. I have looked into the oral and documentary evidence and also the criticism thereof in the judgment of the two Courts below and it appears to me, after a perusal of the evidence on the record, that the case originally set up by the plaintiff that the land 'CDEF' was a common lane between houses of the parties, appears to have been true and the plaintiff was himself responsible for inviting all this trouble on himself by pitching his claim too high by claiming that the land 'CDEF' was his exclusive property. The fact that the plaintiff had failed to prove that the land 'CDEF' was his exclusive property should not, however, result in non-suiting the plaintiff completely, for the justice administered by a Civil Court is remedial and not retributive. 23. The fact that the plaintiff had failed to prove that the land 'CDEF' was his exclusive property should not, however, result in non-suiting the plaintiff completely, for the justice administered by a Civil Court is remedial and not retributive. 23. Looking at the case from this angle, I find that the plaintiff came to the Court originally with the allegations that the land in suit was common lane of the parties between their houses and the first defendant had wrongfully obstructed the flow of the water from his house or from repairing it through the land 'CDEF'. The defendants claimed that the land 'CDEF' exclusively belonged to them. If the plaintiff was unable to prove that the land in suit formed part of partition plot No. 434, that did not lead to the result that the land must be a part of the defendants' house. The defendants did not prove that the land 'CDEF' formed part of their house or of the plot of the land on which their house stood. The situation of the land as disclosed by the commissions to which reference has been made by the lower Appellate Court, vide reports 9-C and 46-C, shows that the land 'CDEF' is in the form of a lane between the house of the parties. It further appears that the defendants have constructed a latrine over a part of the lane, leaving only 1 cubic wide strip of land between the northern wall of the latrine and the plaintiff's house. About the report of the vakil-commissioner (9-C) which is dated 5th February, 1955, the Trial Court on 17th February, 1955, recorded the following order : "9-C/13-C/15-C/16-C. - Heard the parties. Commissioner was asked to prepare a site-plan only and not a map to scale. The scale given by him will not be taken into consideration. On the point of the age of the wall, parties will be allowed to lead oral evidence. Other objections are disallowed. Report is admitted." The direction that the scale shall not be read is on the face of it, unreasonable. If the commissioner, while preparing the site-plan, prepared it to scale, he did not do anything wrong. A map prepared to scale gives a better idea of a thing than a mere rough sketch. Other objections are disallowed. Report is admitted." The direction that the scale shall not be read is on the face of it, unreasonable. If the commissioner, while preparing the site-plan, prepared it to scale, he did not do anything wrong. A map prepared to scale gives a better idea of a thing than a mere rough sketch. As to the age of the wall, this is what the commissioner has said : "The main dispute between the plaintiff and the defendant No. 1 is regarding the construction of a new latrine MNOP. It is the contention of the plaintiff by this new construction that defendant No. 1 has obstructed the Gali QR. As a result of this obstruction water in the rainy season would not flow freely and would thus damage his house. It is also contended by the plaintiff that because the new construction is a latrine water will always be used there and as a result of this there will be dampness all the year round and, therefore, his house along with the grains kept in it will be damaged. In my opinion MNOP is a new construction which is being used as a latrine by the defendants. This construction is not yet complete. Its height at present is 6 ft. 6 inches. In order to approach MNOP the defendant No. 1 had opened a new door XY in this Gali QR. The defendant No. 1 has also blocked this Gali QR by accumulating lot of debris in it. Defendant No. 1 has also blocked this Gali QR at its eastern mouth by placing a temporary patio screen, on it. It is a very narrow lane hardly 4 ft. wide. This gali is not used by village people for going from one place to another because it is very narrow and also does not connect any other house except the house of the plaintiff and the defendant No. 1. As a matter of fact it is only meant for the water of the houses of the plaintiff and the defendant No. 1 to flow out." The reference in the order of the Court to the age of the wall is a reference to the age of the wall 'TS'. That was contained in the following paragraph of the commissioners report, and related to the dispute between the plaintiff and the second defendant. That dispute no longer survives. That was contained in the following paragraph of the commissioners report, and related to the dispute between the plaintiff and the second defendant. That dispute no longer survives. The above quoted observations of the commissioner in his report were admitted in evidence by the Trial Court without any reservation. Paper No. 46-C is a report of another vakil-commissioner dated 8th November, 1957. There is a scale map annexed to this report also. Translated into English, the report says that the gali in question which has been described by the letters 'JIBE' on the scale map annexed to that report is of different widths at different places; that there were no signs of passage through the gali; that was on the back side of the houses and naabdaans were flowing throughout, and at places the gali had become so foul and dirty because of the flow of the naabdaans that it was not possible to go through from one end to the other of it. There was not much else about the gali now in question in that report except that a chhappar had been placed on its eastern mouth and that its width on its eastern side was slightly more than a foot and half. This report does not appear to have either been accepted or rejected by the Court's order dated 8th January, 1958, and ail that happened was that the Court allowed the parties to apply for a fresh preparation of map if they thought that fixed points were available. 24. The correctness of these two reports was not discounted before the lower Appellate Court. The lower Appellate Court found these reports to prove the existence of the gali but added that they do not indicate that the plaintiff is the owner of the land in suit. 25. I think the correct inference to draw in this case was to hold that the land 'CDEF' is a common gali between the houses of the plaintiff and the first defendant and that the first defendant was illegally trying to obstruct the use of the gali by the parties, and the flow of the water of their houses, by constructing a latrine on the western end of the gali and by placing a temporary obstruction on its eastern opening. The latrine constructed by the first defendant on the western end of the gali and the temporary obstruction in the nature of a tattar placed on its eastern opening are thus liable to be removed and the gali cleared off obstruction. 26. In the result, the appeal succeeds and is allowed. The land described by the letters 'CDEF' between the houses of the plaintiff-appellant, since deceased, and now represented by his heirs and legal representatives, and the house of the first defendant, since deceased, now represented by the respondents Nos. 1 to 5, is declared to be a common lane of the parties. The defendant-respondents Nos. 1 to 5 are directed to demolish and remove-all obstructions existing in that lane including the latrine constructed by them on its western end and the temporary tattar placed on its eastern end. They are further restrained from obstructing the free flow of the water of the houses of the parties or from preventing the plaintiff-appellant from flowing the eves water of his house or repairing it or passing through that common lane. However, in the circumstances of the case, I would direct the parties to bear their own costs throughout.