JUDGMENT Kaushal Kishore, Member - This is a defendant's second appeal against the judgment and decree dated April 3, 1973 by the learned Commissioner, Kumaon Division, Nainital, confirming the judgment and decree dated December 27, 1972 by the learned trial court in a suit under Section 229-B 209 of the U.P.Z.A. and L.R. Act. 2. I have heard the learned counsel for the parties and have also perused the record. 3. During the pendency of this appeal, respondent number 1 has expired and the substitution application being within time and without any objection, is hereby allowed. 4. The dispute between the two parties is of peculiar nature. Both being relatives, obtained various parcels of land from the common relative Mst. Khimuli. The old Khata numbers 116 and 123 are now included in the present Khata 173. The plaintiffs had obtained 12 Nalis from Khata number 123 by sale-deed dated March 2, 1957. The defendant Prem Singh had obtained 24 Nalis from Khata number 123 by a sale-deed of the same date. During settlement which appears to have been held from 1957 to 1960, the plaintiffs got their entries extended over 21 Nalis 4 Mutthis, thereby adding a little over 7 Nalis by accretion. The defendant objected to this, say in : that there was no land available for accretion and it was a manipulation to take out land from the possession of the defendant. Earlier the matter had gone in appeal before the learned Commissioner who had given clear directions to the trial court that the old Phant Khata 123 area 36 Nalis and the old Phant Khata number 116 should be compared with the Khaikari Khata of the two parties and it should be ensured that in the last settlement the Khaikar entries in favour of both the parties had been made in accordance with the Khaikari sale-deed and in that proportion. He has further observed that in this case, not only the land in Jethuaseem but also Lamdiari and Bane and other toks was involved including the two Khatas. Both the parties were required to produce all related Khaikari entries and details. But the learned trial court does not appear to have done this and has only mentioned the areas of various plot numbers in different toks as they were in 1872. Both the parties were required to produce all related Khaikari entries and details. But the learned trial court does not appear to have done this and has only mentioned the areas of various plot numbers in different toks as they were in 1872. He has not been able to find out the area 36 Nalis in plant Khata number 123 in 1957 and has only mentioned the discrepancy. Lastly, he has very briefly based his conclusion on the previous judgments and evidence without any discussion and decreed the suit. The learned Commissioner on going through the matter in appeal before him once again had recalled having seen the case earlier but his not discussed the question of accretion and agreed with the trial court. 5. The learned counsel for the appellant has argued that accretion cannot be out of existing cultivation and it must be the new (land reclaimed According to the sale-deeds, at least 36 Nalis must lac found in the old Khata number 123. Comparison of the plot number in the old Khata with the new Khata 73 does not help in establishing the identity' of the land with each party. But the exercise of finding the land of both the parties in Khata number 173 lias not been done so far. It must be observed that in the two sale-deeds and for that matter in any sale-deed on record, no plot numbers have been mentioned. Merely mentioning the area has created lot of difficulty. Then there was a case under Section 145 Cr.P.C. and ultimately under Section 146 Cr.P.C. the defendant was found to be in possession of the disputed plots. The learned counsel for the respondent has argued that the 18 plots 2175 to 2181 to 2185, 2187 to 2191 and 2193 to 2196 total 12 Nalis 5 mutthis have been claimed by the plaintiff and these are contained in Khatauni Khata number 173. However, the basis of pin-pointing these plots as obtained in the sale from Mst. Khaimuli has not been revealed or established. 6. The learned counsel for the appellant has argued that the plaintiff has kept his own 12 Nalis earlier obtained in sale in 1957 separate and is further claiming 12 Nalis mentioned. However, the basis of pin-pointing these plots as obtained in the sale from Mst. Khaimuli has not been revealed or established. 6. The learned counsel for the appellant has argued that the plaintiff has kept his own 12 Nalis earlier obtained in sale in 1957 separate and is further claiming 12 Nalis mentioned. He has further argued that the burden of establishing that the increase in the area 7 Nalis 5 Mutthis was in that reclamation, lay squarely on the plaintiff but he failed to discharge this burden. Only when the plaintiff has discharged his own burden, further burden would fall on the defendant. In support, he has cited a ruling reported in A.I.R. 1970 S.C. 1367. 7. I find that the matter of accretion for which particularly the case was remanded to the trial court has not been dealt with at all and so the judgments and decree of the two courts below suffer from defect of lack of foundation. I also agree that the plaintiffs have not discharged their burden of proof. 8. In this type of case where definite plot numbers are not mentioned in the deed of transfer, a full comparison of the particular tok area along with the areas transferred to various recipients is a must. This comparison coupled with enquiry into the possession on the spot would have revealed sufficient facts and basis to arrive at an acceptable solution and decision. In this direction the earlier efforts include deputing the Amin Kunwar Singh who could certainly do a good job but apparently he was not required to do the full job His statements in which he proves his report dated September 5, 1971 and various statements prepared by him and the map as well, he has also mentioned that he did not verify the total area of jeduaseem tok, Tamdiari tok and Banc Tok as by order dated July 24, 1971, he was required to report the old areas of the plots in suit only. To my mind, in the absence of title by the sale-deed, not mentioning the plot numbers, the only way to fix the area is to look for the areas 12 nalis and 24 nalis of the respective claims and Khata and Toks concerned and then look for any accretion that could have been effected or was possible. To my mind, in the absence of title by the sale-deed, not mentioning the plot numbers, the only way to fix the area is to look for the areas 12 nalis and 24 nalis of the respective claims and Khata and Toks concerned and then look for any accretion that could have been effected or was possible. I do not find any basic proof on the record that even Sabik numbers of the 18 plots in suit were those which were given in sale to Sagat Singh and others. By nature, this case must be deemed similar to a case of demarcation where area of the plot on both the sides has to be compared and completed before a proper and just boundary can be fixed. So far the plaintiff' has neither provided any documentary evidence for necessary decision, nor has he discharged his burden. In the normal course, this suit would have been dismissed. However, considering the conditions in the hill areas, I consider it fit to give one more chance, in which the learned trial court must comply with the direction of the learned Commissioner given in his judgment dated March 30, 1972 mentioned earlier in this judgment and should further utilise knowledge and service of the Amin to fix the respective areas of the two parties in a just and acceptable manner and also look into the question of accretion thereafter, if any. 9. Needless to say, the judgment and decree of the two courts below cannot be sustained, considering the position as it is. Accordingly, the second appeal is allowed, the judgments and decrees of the two courts below dated April 3, 1973 and December 27, 1972 are hereby set aside and the case is remanded to the learned trial court for proceedings further in accordance with the direction given.