H. N. TILHARI, J. ( 1 ) THIS is a plaintiffs second appeal from the judgment and decree dated 18-12-1984, passed by civil judge, madikeri, in regulr appeal No. 39 of 1980, whereby, the learned lower appellate court has reversed the judgment and decree dated 5-7-1980, passed by munsiff, virajpet, decreeing the plaintiffs claim in the original suit No. 148 of 1979 and after setting aside the trial court's decree allowed the defendant's appeal by dismissing the claim made by the plaintiff in the suit. ( 2 ) THE plaintiff-appellant's case in brief is that the plaintiff-appellant in the present case, filed the suit for declaration and permanent injunction restraining the defendants-respondents and their agents as well as the servants from interfering with the plaintiffs right and possession and enjoyment of suit property. ( 3 ) PLAINTIFFS case has been that he is in exclusive peaceful possession and enjoyment of the property in dispute more specifically described in the plaint schedule, as per exchange deed dated 25-11-1974, between the plaintiff on the one hand and Smt. P. G. Ponnawa and two others on the other hand, according to the plaintiffs case, plaintiff became the absolute owner of the suit property mentioned in the plaint schedule. According to plaintiff-appellant, defendant on 20-5-1979, unlawfully attempted to trespass into the north-eastern side of the plaint schedule land after having removed the fence and destroyed a few coffee plants and attempted to take forcible possession of the same. As such, according to the plaintiff, the need for filing the suit for declaration of title to the effect that the plaintiff is the owner of the property in suit and for permanent injunction restraining the defendant from interfering with plaintiff s possession and enjoyment. ( 4 ) THE defendant denied the plaint averments. The defendant-respondent averred that the suit property was ancestral property of the plaintiff-appellant and 2nd defendant and the northern portion of the suit property measuring 1. 68 acres had fallen to the share of the 2nd defendant and the southern portion had fallen to the share of the plaintiff and that the plaintiff and defendants stand in possession of their respective shares over the property in dispute. ( 5 ) THE defendant's case is that the plaintiff and theirfore fathers always remained in use and enjoyment of land of their portions and subsequently, the plaintiff constructed a big house in his area. ( 5 ) THE defendant's case is that the plaintiff and theirfore fathers always remained in use and enjoyment of land of their portions and subsequently, the plaintiff constructed a big house in his area. While, defendants used land of the portion of their share in sy. No. 86, by constructing residential thatched house, cattle shed etc. The plea of resjudicata was also raised. ( 6 ) ON the basis of the pleadings of the parties, the trial court framed the following: issues 1. Whether the plaintiff proves that he is the absolute owner of the suit schedule lands? 2. Whether the plaintiff proves that he is in lawful possession of the suit schedule lands? 3. Whether defendants interfered with the possession of the plaintiff? 4. Whether the defendants prove that they were in adverse possession of the northern portion of the suit schedule lands? 5. Is the suit barred by law of limitation and principles of res judicata? 6. To what relief are the parties entitled? ( 7 ) AFTER recording both the party's evidence, both oral as well as entertaining the documents and examining the same, the trial court decreed the suit of the plaintiff-appellant for declaration and declared that the plaintiff is the absolute owner in possession of the property in plaint schedule. It has also granted a permanent injunction restraining the defendants, that is, the present respondents from interfering with the peaceful possession and enjoyment of the plaintiff of the suit property. The trial court recorded the following findings: (I) that the plaintiff has established that he is the exclusive owner of the property in dispute. That there is no evidence to prove the partition and possession of the alleged extent of defendant No. 2. The trial court held that the plaintiff is entitled to the relief of declaration and permanent injunction s prayed. ( 8 ) FEELING aggrieved from the judgment and decree of the trial court, the defendant preferred regulr civil appeal No. 39 of 1980. The lower appellate court without going into the question of title one way or the other held on the basis of the perusal of evidence including the commissioner's report filed in an earlier case which had been marked s ex. The lower appellate court without going into the question of title one way or the other held on the basis of the perusal of evidence including the commissioner's report filed in an earlier case which had been marked s ex. d5, 'that the plaintiff though he is in possession of the part of the portion of the land in dispute, but, he is not in possession of the entire land and that the commissioner's report coupled with the evidence in the case shows that the defendant is in the northern half of that land, while, plaintiff is in the southern half, so no decree for injunction can be granted and so the suit is liable to be dismissed. Therefore, there is no need to go into the question of plaintiff s title. With these findings, the lower appellate court allowed the defendant's appeal and set aside the trial court's decree. ( 9 ) AS I have mentioned earlier, no finding on the question of title has been recorded by the first appellate court, nor it appears that lower appellate court set aside the finding recorded by the trial court on the question of title of the plaintiff. It observes: that when he is not entitled to relief of injunction, then, he is also not entitled to a declaration that he is the owner of the property s to referred above. With these findings, the lower appellate court allowed the appeal of the defendant and dismissed the plaintiff s claim in o. s. No. 148 of 1979. Having feit aggrieved from the findings and the decision of the lower appellate court, the plaintiff has come up in second appeal. ( 10 ) I have heard the learned counsel for the appellant Sri p. ganapathi bhat and Sri t. s. amar kumar learned counsel for the respondent. The learned counsel for the appellant contended before me that firstly the lower appellate court committed the substantial error of law in setting aside the trial court's finding on the question of possession and in holding that plaintiff is not in possession of the entire land, but, only a half southern portion of the land and in dismissing the plaintiff s suit. The learned counsel for the appellant submitted that the finding on the question of possession recorded by the lower appellate court is vitiated by substantial error of law s it has been arrived at by placing relevance on inadmissible piece of evidence i. e. ex. d5. As such, the finding is liable to be set aside. Elaborating his contention Sri ganapathi bhat contended that the commissioner's report-ex. d5, a copy of which had been filed in the present appeal s a piece of evidence, but, without the same being proved by the person, who conducted the inspection and survey was not admissible in the present suit. He submitted that report could be the evidence only in respect of the suit i. e. in the suit in which the commissioner had been appointed for the purpose of that case but, that report could not be read s a piece of evidence in the present appeal until and unless the commissioner was or had been examined. In support of his contention - Sri ganapathi bhat made reference to the decision of the Calcutta high court in the case of Sarat Chandra Rakhit v Sarala Bala Ghosh and others. He also made a further reference to another decision in the case of Ibrahim Beg v Mrs. Aziman and another. ( 11 ) THE learned counsel for appellant further urged that the lower appellate court erred in law in a substantial manner by not giving any decision on the question of the title of the parties, the appellate court either to have confirm the finding on question of title which had been recorded by the trial court to which proposition, the learned counsel for the respondent did not agree. As such, it is submitted by Sri bhat that proper course in such a case is that the matter should be remanded to the lower appellate court with a direction to decide on the question of title of the parties. ( 12 ) ON behalf of the respondents, it was contended by the respondent's counsel Sri t. s. amar kumar that finding on question has been given not only on the basis of ex. d5 but the lower appellate court has taken into consideration the commissioner's report s a corroborative piece of evidence, along with other evidence on record. ( 12 ) ON behalf of the respondents, it was contended by the respondent's counsel Sri t. s. amar kumar that finding on question has been given not only on the basis of ex. d5 but the lower appellate court has taken into consideration the commissioner's report s a corroborative piece of evidence, along with other evidence on record. So there is no error of law on the part of the court below, and s the plaintiff was held not be in possession of entire land No. Decree for injunction was granted and further s plaintiff did not amend plaint and did not claim decree for possession of the suit land. ( 13 ) THE lower appellate court did not commit the error of law by not decreeing the plaintiff s claim for declaration, s well s there was no error of law committed by the lower appellate court when it did not record the finding on the question of title of the plaintiff, Sri bhat submitted that the lower appellate court had only accepted and confirmed the findings of the trial court on the question of title. Sri amar kumar, in support of his contention that suit for declaration and injunction had to be dismissed s has been done by lower appellate court by placing reliance to the Decision of this Court in Kundur Rudrappa v Mysore Revenue Appellate Tribunal, Bangalore. ( 14 ) WITH reference to the commissioner's report, Sri amarkumar had contended that report was rightly considered, s no objection was raised to it and in support of his contention, he referred the decision of this court in M. R. Chandrashekharaiah and another v Shivanna and another. ( 15 ) I have applied my mind to the contentions made by the learned counsel for the parties and I have gone through the record. ( 15 ) I have applied my mind to the contentions made by the learned counsel for the parties and I have gone through the record. No doubt, s has been rightly contended by the learned counsel for the respondents that it is well established principle under Section 100 of code that the findings of fact are binding ordinarily on a court of second appeal and that finding of fact cannot be interfered merely on the ground of wrong or mis-appreciation of evidence, unless a finding of fact is shown to be vitiated by error of law of substantial nature for illustration, a finding which has been arrived at on the basis of conjectures and surmises, after having ignored the material, relevant admissible piece of evidence or where the finding of fact had been arrived at on the basis of evidence partly admissible and partly inadmissible, then also, such findings can be interfered in the second appeal. There are many other illustrations that when court of fact while arriving at finding on question of facts make out a new case, where the findings have been arrived at by misleading material evidence and when it is perverse one. The finding of fact can also be interfered with where the findings has been arrived at without duly understanding and appreciating the point in dispute involved or is based on mis-appreciation of law on the subject. There are few illustrations, but, the list is not exhaustive. ( 16 ) IN the present case, the question to be considered is whether ex. d5 which is the commissioner's report which had been filed in o. s. No. 65 of 1977 could be relied s piece of admissible in evidence without said commissioner being examined in evidence. The commissioner had been appointed in o. s. No. 192 of 1975 and after having the visited spot, the commissioner submitted his report in the suit o. s. No. 192 of 1975. It is an undisputed fact that the commissioner of that case while filing his report has not been examined in the trial court in the present suit to prove the contents of his report and to state about the accuracy of the report etc. Question is whether is these circumstances, the commissioner's report was admissible s evidence for the purpose of this case. Question is whether is these circumstances, the commissioner's report was admissible s evidence for the purpose of this case. Under order 26, Rule 10 (2), it has been provided that a report will be piece of evidence only in the case in which the commissioner was appointed. Order 26, Rule 10 (2) reads s under:"report and depositions to be evidence in suit. The report of the commissioner and the evidence taken by him (but not the evidence without the report) shall be evidence in the suit and shall form part of the record, but the court, or, with the permission of the court, any of the parties, to the suit may examine the commissioner personally in open court touching any of the matters referred to him or mentioned in his report, or s to his report, or s to the manner in which he has made investigation". ( 17 ) THE specific use of the expression "shall be evidence in the suit" specifically points out that for the purpose of the suit in which the commissioner had been appointed and the commissioner submits the report in that suit, commissioner's report will be evidence. The "suit" refers to, the specific suit, namely, the suit in which the commissioner had been appointed and in which report s given by him not to any other suit. So, that report could be taken to be the piece of evidence in that case only even without examining the commissioner. But, it is open to the parties and the court to examine the commissioner in that case, s it has evidentiary value and admissible. In any other legal proceedings or suit, it cannot be taken by itself to be a piece of evidence unless the commissioner has been examined to prove the contents and accuracy of his report. When i so opined, i find support for my view from the decision of the division bench of the Calcutta high court in the case of sarat chandra rakhit, supra. Their lordships of the Calcutta high court observed s under:"then the learned vakil has challenged the map and the report of the commissioner which were admitted by the munsiff who tried the suit. It is, no doubt, correct that a map and a report of a commissioner who made a local enquiry can be evidence only in the suit in which he made the enquiry. It is, no doubt, correct that a map and a report of a commissioner who made a local enquiry can be evidence only in the suit in which he made the enquiry. That was held in the case of denobundhu ghose u nistarini dassi. But, in this case, the report and the map were not taken into evidence by themselves ss contemplated in the Civil Procedure Code, but they were taken in under the Evidence Act on being proved by the person who made them, that is the pleader commissioner who made them was examined in this case and he deposed that the map and the report were made by him and they were then marked s exhibits". ( 18 ) I further find support from the decision of the chief court of oudh, that is, one of the predecessors of the present High Court of Uttar Pradesh, in the case of ibrahim beg, supra, Hon'ble nanavati, j. , S he then was has been pleased to observe s under:"it has been contended on behalf of the applicants that under order 26, Rule 9, civil p. c. , the commissioner appointed by a civil court to make a local inspection and to submit a report is a person who is performing a duty specially enjoined by the law of the country, and s such his report falls within the purview of Section 35, Evidence Act. In my opinion this contention is not sound. A commissioner appointed by a court with special direction to make a particular inquiry into the particular facts of a case is not a person performing "a duty specially enjoined by the law of his country in which such book, register or record is kept". There is no duty enjoined upon a commissioner by the law of his land to prepare any book, register or record within the meaning of Section 35, Evidence Act, and I am therefore clearly of opinion that the report of the commissioner is a private document which, like any other private document, could be proved only by examining the writer of that report s witness in the case". ( 19 ) IN the earlier part of this very judgment, Hon'ble nanavati, j. , Has observed that:"a high court has, in second appeal, a right to disturb the findings of fact which are based upon inadmissible evidence. ( 19 ) IN the earlier part of this very judgment, Hon'ble nanavati, j. , Has observed that:"a high court has, in second appeal, a right to disturb the findings of fact which are based upon inadmissible evidence. In the present case, I have held that exs. A-11 and a-12 are inadmissible evidence, and therefore this court was competent to interfere with the findings of fact of the lower appellate court based upon such inadmissible evidence. "it may be mentioned here that exs. A-ll and a-12 were the report and the map and commissioner's report and those documents were held to be inadmissible. The learned counsel for the petitioner has argued that a-ll and a-12 were admissible under Section 35 of the Evidence Act. In support of his contention, he has relied upon a ruling reported in i luck case, 259 (1 ). It is in that context, Hon'ble Justice nanavati, j. , Considered the question of admissibility of the commissioner's report. ( 20 ) THAT the decision of this court given in the case of m. r. chandrashekharaiah, supra, s relied by counsel for respondents is of no avail and is not applicable to the facts of the present case, s in that case, question related to admissibility of commissioner's report filed in that very case where commissioner was appointed and order 26, Rule 10 (2) of C. P. C. did apply and made that report evidence of facts mentioned in report for the purpose of that very suit and not any other suit. Thus considered, i find that ex. d5 was inadmissible piece of evidence and as the finding of question of possession has been recorded on the basis of not only other evidence, but. Ex. d5. The inadmissible evidence s well s the finding are vitiated by the substantial error of law and it is liable to be set aside. No doubt, the court after looking to the inadmissible evidence, recorded a finding, but the recording of finding of that question would not suffice until the question of title is decided s to whether the plaintiff has been the exclusive owner s held by the trial court or the property jointly belonged to plaintiff-appellant and defendant-respondent s claimed by the defendants and on this question of fact, it was the duty of the lower appellate court to have recorded a finding. That in these circumstances, it appears reasonable to set aside the judgment and decree of the lower appellate court and to remand the case. ( 21 ) THEREFORE, r. s. a. is allowed and the judgment and decree of the lower appellate court is set aside and hereby remanded the case to the lower appellate court with direction to decide the appeal afresh and to record the findings on questions involved including that of title and possession keeping in view the observations made above. ( 22 ) I will be open to the lower appellate court to and it is expected that the lower appellate court will decide the appeal on all points. The costs of the second appeal shall be borne by the parties. --- *** --- .