JUDGMENT V.N. Khare, J. - This second Appeal arises out of suit filed by plaintiff-respondents for permanent injunction against defendant-appellant restraining him from raising any construction on any portion of plots no 100.106, and 1212 situate in village Fartola patti Regruwan, district Almora. 2. In short, the plaintiffs case was that they and the defendants no. 2 to 16 are the joint owners of the plots in dispute which have come to their share in the family partition. The plaintiffs further alleged that defendant appellant forcibly started digging foundation for construction of a house in the plots in dispute and also collected material on the disputed land. The plaintiffs asked defendant through registered notice not to make any construction but defendant no. 1 did not stop the construction, with the result the suit. 3. The defendant no. 1 filed written statement wherein he denied the allegations made in the plaint. The defendant alternatively pleaded that he has a right to built the house on a portion of these plots as defendant no. 6 has transferred his one Nali land to him which is situate near the disputed land. 4. Defendants no. 2 to 16 did not contest the suit and the suit proceeded ex parte against them. 5. The trial court framed 4 issues. Issue no. 1 and 2 were material issues. On these two issues learned Munsif held that the plaintiffs were not found to be owners of the plots where the constructions were made by defendant no 1 and that the defendant no. 1 is lease-holder of the land where the construction has been made by him. In view of these findings the learned Munsif dismissed the suit. The appellate court allowed the plaintiffs appeal and decreed the suit. 6. Learned counsel for the appellant urged that the appellate court has decreed the suit solely on basis of commissioners report and map without considering other evidence on record of the case. The trial court issued a survey commission for location of the plots of the plaintiffs. The Amin Commissioner after spot inspection submitted his report. Both the parties filed objections against the report and map of the Amin commissioner. Subsequently counsel for the parties stated that the report and map of Amin commissioner be confirmed subject to other evidence. According to report of Amin commissioner defendant no. 1 had constructed the house on a portion of plots no. Both the parties filed objections against the report and map of the Amin commissioner. Subsequently counsel for the parties stated that the report and map of Amin commissioner be confirmed subject to other evidence. According to report of Amin commissioner defendant no. 1 had constructed the house on a portion of plots no. 106, 107, 105 and 1215. The learned Munsif also made local inspection of the plots in dispute. At the time of his local inspection the learned Munsif found a complete pucca house constructed on the land. The inspection note shows that the measurements of road side given in the map of Amin are in excess than those found by the learned Munsif at the time of his inspection. Ex. 3 is the copy of the settlement map which shows the old settlement plots no. 1618 and 1619. Defendant no. 1 filed copy of the order sanctioning the lease (Ex. A 4) and the copy of the map of the lease deed (Ex. A-3) for showing that he has built the house on the land which was leased out to him by the Government. Besides that the defendant examined himself before the trial court. The trial court after considering the oral and documentary evidence found that the plaintiffs had failed to prove that defendant had built the house on the plots no. 1214 and 1215. As stated above, counsel for the parties had agreed that the report and map of Amin commissioner may be confirmed subject to other evidence. The appellate court did not consider the other evidence of record and erroneously held that since the report and map of Amin commissioner were accepted by the parties, there was no question to find out the land leased out to the defendant no. 1 by the State Government. I do not wish to express any opinion on merit of the evidence which have not been considered by the appellate court. Since the evidence on record has not been considered by the appellate court while considering Amins report and map, the judgment of appellate court is not sustainable in law. 7. In view of above this Second Appeal succeeds and is allowed. The judgment and decree of appellate court (Additional Civil Judge Nainital) dated 25-3-1972 are set aside and the case is sent back to the District Judge, Nainital who will decide the appeal in accordance which law. 7. In view of above this Second Appeal succeeds and is allowed. The judgment and decree of appellate court (Additional Civil Judge Nainital) dated 25-3-1972 are set aside and the case is sent back to the District Judge, Nainital who will decide the appeal in accordance which law. Since nobody has appeared on behalf of respondents there will be no order as to costs.