JUDGMENT Dr. R.R. Misra, J. - This is a defendant's second appeal arising out of a suit for permanent injunction filed by the plaintiff- respondent restraining the defendants- appellants from cutting away the trees of the plaintiff existing in the land detailed at the foot of the plaint. 2. The plaintiff's case was that the land, detailed at the foot of the plaint, belonged to the plaintiff in which his residential house existed. In the said land, around the house of the plaintiff there existed mango, Mahua trees and bamboo clumps. The trees were planted by the plaintiff and belonged to him. 3. In defence, the defendants alleged that the house and land also belonged to them and not to the plaintiff and the plaintiff was living in the house as lincensee for the last about five years. It was further alleged that the defendants were owners of the disputed trees and were in possession of the trees and bamboo clumps. 4. The learned Munsif held that the plaintiff was not the owner of the house. He further held that the plaintiff was not in possession of the trees and bamboo clumps. Accordingly the suit of the plaintiff- respondent was dismissed. On an appeal, the lower appellant court by the impugned judgment dated 11th September, 1975, allowed the appeal of the plaintiff and has decreed the suit with costs and has also restrained the defendants permanently from cutting away mango and Mahua trees and bamboo clumps existing in the land detailed at the foot of the plaint. Aggrieved, the defendants have filed the present second appeal in this court. 5. The lower appellate court has in its judgment stated that the plaintiff had brought the suit with reference to the, boundaries of the land in which the trees exist and the suit was not filed with reference to the plot numbers of the land. Since it were the defendants who had alleged that the disputed trees and bamboo clumps existed in plot Nos. 3047, 3048 and 3054, the burden was on them to establish that the disputed trees and bamboo clumps existed in the said plots. The lower appellate Court has on appraisal of oral evidence, held that the case of the plaintiff has been proved and he decreed the suit. 6. 3047, 3048 and 3054, the burden was on them to establish that the disputed trees and bamboo clumps existed in the said plots. The lower appellate Court has on appraisal of oral evidence, held that the case of the plaintiff has been proved and he decreed the suit. 6. From a perusal of the judgment of the lower appellate court, it is clear that it is a judgment of reversal. In the said judgment there is no mention as to how the appraisal of evidence by the trial court or the the findings recorded by it were erroneous. All that was done by it was to set aside the finding of the trial court on the basis of appraisal of evidence. This approach of the lower appellate court, in my opinion, is not warranted by law and as such the Judgment of the lower appellate court is vitiated. 7. That apart I also find that the lower appellate court has arrived at a conclusion that the defendants have not got prepared the survey map to show as to in which plot the trees and bamboo lie out of three plots in question. From a perusal of the record, I find that on 10th September, 1973, the defendants had, in fact, moved the trial court for appointment of a survey commissioner. This application was, however, rejected by the trial court. The reason given in the order sheet by the trial court is that since the evidence of the parties has begun therefore, this application is rejected. In my opinion, the said reason could not be a valid reason in the eye of law more particularly when the case hinges on the findings which may be recorded on the report of survey commissioner. In this view of the matter, the view of the lower appellate court that no survey map was got prepared is erroneous on facts, and has been arrived at without examining the record of the trial court including the said application dated 10th September 1973 and the order thereon. Since in the present case the report of the survey commissioner is material to decide the controversy in question, therefore, the judgment of the lower appellate court is not sustainable in law. 8. In view of the above discussion, in my opinion, the appeal deserves to he allowed. It is accordingly allowed with costs. Since in the present case the report of the survey commissioner is material to decide the controversy in question, therefore, the judgment of the lower appellate court is not sustainable in law. 8. In view of the above discussion, in my opinion, the appeal deserves to he allowed. It is accordingly allowed with costs. The impugned judgment passed by the lower appellate court is set aside with a direction to get a report of the survey commissioner in accordance with the application dated 10th September, 1973 moved by the defendants and thereafter decide the appeal afresh in accordance with law.