JUDGMENT A. K. PARICHHA, J. : This is a plaintiff’s appeal against the judgment and decree dated 7.11.1977 and 15.11.1977 passed by Subordinate Judge, Rourkela in Title Suit No.32/7 of 1967-77. 2. The original plaintiff Dr. Ramakanta Mishra in May 1967 filed the above noted suit complaining encroachment from the eastern portion of his purchased land by defendant No.1, which he claimed to be approximately 4 decimals. The case of the plaintiff was that on 17th May, 1955 he obtained a lease of 67 decimals of land out of Plot No.484 vide Ext.1. On 14th July, 1964 defendant No.2 sold this land to the plaintiff under Ext.2. To the contigu¬ous east of plaintiff’s land defendant No.2 had leased out 67 decimals to defendant No.3. On 5th July 1965 defendant No.1, who is the wife of defendant No.3 purchased 62 decimals out of that 67 decimals of land under Ext.B. Between 1961 and 1964 defendant No.1 encroached a portion of plaintiff’s land and when the plain¬tiff objected, the construction on the encroached land was demol¬ished. In 1966 defendant No.1 again started constructing a com¬pound wall on plaintiff’s land extending up to the end of the northern boundary of plot No.484. When the defendants 1 & 3 did not vacate the encroached portion, the plaintiff came up with the suit asking for declaration of title, recovery of possession and damages. 3. Defendant Nos.1 & 3 filed joint written statement while defendant No.2 filed a separate one. As per the joint written statement, plaintiff’s title over the suit land and the allega¬tion of encroached land were denied. Defendant No.2 denied the plaintiff’s story of permanent lease and also disputed the valid¬ity of sale of the land. He, however, did not turn up to contest the suit. The plaintiff examined himself as P.W.1 and the 3rd defendant was examined on behalf of defendant Nos.1 & 3 as D.W.1. At the instance of the plaintiff, a pleader commissioner was appointed, who measured the lands and submitted his report and connected maps, field book etc. which were marked as Exits. 4 series and “A”. On perusal of the evidence and the report, learned trial Judge found that the defendants 1 & 3 had en¬croached into the lands of the plaintiff as alleged. Therefore, he decreed the plaintiff’s suit and directed them to remove the boundary wall within 3 months. The claim for damages was reject¬ed. which were marked as Exits. 4 series and “A”. On perusal of the evidence and the report, learned trial Judge found that the defendants 1 & 3 had en¬croached into the lands of the plaintiff as alleged. Therefore, he decreed the plaintiff’s suit and directed them to remove the boundary wall within 3 months. The claim for damages was reject¬ed. That decree was assailed by Defendant 1 & 3 in First Appeal No.121 of 1971. That appeal was disposed of by this Court with the following observation : “The dispute can be adequately resolved and the truth can be appropriately found out, if measurement is carried out from the eastern side and is confined to the lands acquired by the plain¬tiff and defendant No.1. The commissioner shall be directed to measure the respective plots of plaintiff and defendant No.1 by starting from the east. The commissioner would first carve out the 62 decimals of defendant No.1’s land, purchased under Ext.B, and thereafter proceed to demarcate the land of the plaintiff, purchased under Ext.1. The encroachment must also be independently marked out. In case of any part of it falls in plaintiff’s land, the plaintiff must be given decree for eviction. 4. Pursuant to that order, learned trial Court appointed one Dr. K. K. Jain, Professor of Rourkela Engineering College as the Commissioner to carry out the survey work in the light of the aforementioned direction. The Engineer-Commissioner conducted the survey and submitted his report that was marked as Ext.II. The Commissioner was also examined as Court witness. After con¬sidering the survey report and the evidence on record learned trial Judge decreed the suit in part on contest against defend¬ants 1 & 3 and ex parte against defendant No.2 without cost, declaring the plaintiff’s title over the encroached land shown in the Commissioner’s report, Ext.III/B measuring About Ac.0.04 decimals and directed recovery of possession of the same. Ag¬grieved by that judgment and decree, the plaintiff filed the present appeal. During the pendency of this appeal plaintiff-appellant died and his legal heirs, who are the present appel¬lants were substituted. Similarly, respondents 1 & 2 also died and their legal heirs, who are the present respondents were substituted. 5. Mr. Ag¬grieved by that judgment and decree, the plaintiff filed the present appeal. During the pendency of this appeal plaintiff-appellant died and his legal heirs, who are the present appel¬lants were substituted. Similarly, respondents 1 & 2 also died and their legal heirs, who are the present respondents were substituted. 5. Mr. Siddhartha Mishra from the office of M/s. N. C. Pati and associates appearing for the appellants submitted that the report of the Engineer was not acceptable as the Commissioner while making the survey and preparing the report was swayed away by extraneous and irrelevant consideration. He specifically alleged the following commission and omissions of the Commission¬er: (i) Commissioner did not calculate the area of A.K. Pani. So it was not clear whether the excess land supposedly in the posses¬sion of defendant No.1 was from the land of the plaintiff or A. K. Pani; (ii) Commissioner did not record the length of eastern side of A.K. Pani’s land and the northern side of the land belonging to defendant No.1 and her vendor; (iii) Commissioner did not use a proper fixed point while starting the measurement; (iv) Commissioner illegally accepted the uncertified copy of the judgment of the case between the plaintiff and one Mr. Rao from defendant No.3. 6. Learned counsel appearing on behalf of the respondents while supporting the impugned judgment submitted per contra that the Engineer-Commissioner conducted the survey very much in accordance with the direction issued by this Court and his report is never influenced by any extraneous consideration. He further submitted that after hearing the objection of the parties the Commissioner report was accepted by the Court vide order dated 14.10.1977 and the said order having not been challenged in any higher forum the appellant is now estopped from raising objection to the correctness of that report. 7. According to the direction given by this Court in First Appeal No.121 of 1971, the Commissioner was directed to measure the respective plots of the plaintiff and defendant No.1 by starting from the east and to first carve out the land of Ac.0.62 dec. of defendant No.1 purchased under Ext.B and thereafter proceed to demarcate the land the plaintiff purchased under Ext.1 and to independently mark out the encroachment, if any. It was also specifically observed that if any part of the encroachment falls in the plaintiff’s land then the plaintiff is to be given decree for eviction. of defendant No.1 purchased under Ext.B and thereafter proceed to demarcate the land the plaintiff purchased under Ext.1 and to independently mark out the encroachment, if any. It was also specifically observed that if any part of the encroachment falls in the plaintiff’s land then the plaintiff is to be given decree for eviction. The report of the Engineer Commissioner would show that he clearly understood the above noted direction and chalked out the task to be under-taken by him and then after giving notice to the parties he with the assistance of skilled helpers conducted the survey measurement on 14.8.1977. The report clearly reveals that he started the measurement from the east and after demarcating the land of defendant No.1 proceeded to demar¬cate the land of the plaintiff acquired under Ext.1. He has noted that after the measurement he found that defendant No.1 is presently in possession of 64.4 decimals against 62 decimals acquired by her under Ext.B and the plaintiff was in possession of 59.8 decimals out of Ac.0.67 decimals of land purchased under Ext.1. The report also reveals that plaintiff was also in posses¬sion of 3 decimals of land belonging to railway by way of en¬croachment. He has shown 62 decimals of the land purchased by defendant No.1, 5 decimals of land of the vendor and the remain¬ing land belonging to the plaintiff in the map marked by him as figure 3. So, the report of the Commissioner does not indicate that any of the directions of this Court was violated while making the survey and measurement. It is alleged that the land and boundary of A. K. Pani was not measured and proper fixed point was not taken. The Commissioner in his report has vividly described the manner and details of the survey and measurement in paragraphs 7 to 10 of this report. It is alleged that the land and boundary of A. K. Pani was not measured and proper fixed point was not taken. The Commissioner in his report has vividly described the manner and details of the survey and measurement in paragraphs 7 to 10 of this report. In paragraph 8 it is clearly mentioned that the plaintiff showed him one boundary pillar of the erstwhile BNR lying towards the extreme north-west but on field measurement from this pillar to the central line of the road and the middle of the railway track respectively, considera¬ble distance was found between the measured distance and the distance shown in the C.S. map, which created a doubt about the suitability of the pillar as the permanent reference point and hence for measurement and demarcation purpose he took the eastern boundary of the mother plot as correct starting point. He has clarified that the defendant No.3, the husband of defendant No.1 protested and did not allow him to measure the land of A Pani, which is the eastern most land of the mother plot. But, however, he measured the northern and southern side of A. Pani’s land. In his evidence as well as the report the Engineer Commissioner further has mentioned that not only he carved out the lands of plaintiff and defendants 1, but he also carved out the he 5 deci¬mals of land belonging to the vendor as well as the portions of the land encroached by the parties. No doubt, the Commissioner admitted that he perused a copy of the judgment produced before him, but that judgment was never used in deriving the conclu¬sions, nor is there any evidence to show that the copy of the judgment influenced his survey and report. The report itself shows that the conclusions have been drawn from the measurement and not from the contents of that copy of the judgment. 8. It is worthwhile to note that none of the parties could show the correct fixed point. The railway pillar was found to be in a place, which was different from the place shown in the map. In such situation, taking the eastern side pucca wall as starting point cannot be said to be technically incorrect or perverse. 8. It is worthwhile to note that none of the parties could show the correct fixed point. The railway pillar was found to be in a place, which was different from the place shown in the map. In such situation, taking the eastern side pucca wall as starting point cannot be said to be technically incorrect or perverse. Moreover, the measurement noted shows that defendant No.1 was in possession of 64.4 decimals instead of 62 decimals purchased by her in Ext.B. Her explanation was that her vendor had 5 decimals of land to the north but he has not yet put his boundary wall on this land and that the excess 2.4 decimals belong to the vendor. On measurement of the vendor’s plot and thereafter the plain¬tiff’s plot this explanation was found incorrect. That the Com¬missioner was not influenced by any of the parties or extraneous consideration is apparent from the very fact that he took the survey and measurements of the lands of the parties and also the neighbouring lands meticulously and not only indicated the lands encroached by defendant No.1, but also the land encroached by the plaintiff. The series of maps attached to the report also show that he took every conceivable aspect into consideration. That apart, before accepting the report, learned trial Court examined the Commissioner as a Court witness in order to clarify each and every aspect and allowed the parties to cross-examine the Commis¬sioner. When the trial Court accepted the report of the Engineer Commissioner after considering the objections raised by the parties and none of the parties challenged that order of accept¬ance in any higher forum, at this belated stage they cannot be permitted to raise the same objections about the acceptability of the report of the Commissioner. In this situation, the order of learned trial judge has attended the finality. 9. The detailed report of the Commissioner shows that defendant No.1 has encroached about Ac.0.04 decimals of land of the plaintiff. The plaintiff did not produce any evidence and did not indicate from the measurements to show that the encroachment was actually more than the Ac.0.04 decimals shown by the Commis¬sioner. So, the trial Judge did not commit any error in declaring the right, title of the plaintiff and recovery of possession of those Ac.0.04 decimals of land. The plaintiff did not produce any evidence and did not indicate from the measurements to show that the encroachment was actually more than the Ac.0.04 decimals shown by the Commis¬sioner. So, the trial Judge did not commit any error in declaring the right, title of the plaintiff and recovery of possession of those Ac.0.04 decimals of land. The Judgment of learned trial Judge in fact shows that he considered each and every aspect and also each and every objection raised by the parties and assigned reasons for relying on the report of the Commissioner. That being the position, the impugned judgment and decree does not call for any kind of interference. The judgment and decree of the learned trial Court is accordingly confirmed and the appeal is dismissed on contest, but in the peculiar circumstances without any cost. Appeal dismissed.