JUDGMENT Shylendra Kumar, J. This Second Appeal is by the plaintiff in as No.422 of 1992 who though succeeded in getting the decree for recovery of possession of the suit schedule property described as schedule-B forming part of ‘A’ -Schedule property and had initially succeeded in sustaining that decree before the court, in the second appeal by the defendant, this court having set aside the matter and having remanded the matter to the lower appellate court and the lower appellate court now having allowed the appeal of the defendant, is now before this court seeking for restoration of the Judgment and decree as passed by the trial court. 2. In between, during the pendency of the-appeal before the lower appellate court, the matter had come to this court through a civil revision petition as the plaintiff’s application seeking for amendment of the plaint to include the prayer fur declaration though originally the Prayer was only for recovery of Possession of the property, had been rejected by the trial court and Ibis court in revisional jurisdiction having set aside that order and having allowed the application for amendment the plaint came to be amended during the pendency of the appeal before the lower appellate court and it is thereafter that the appeal of the defendant has been allowed under the impugned Judgment and decree dated 09.11.2001 passed in R.A. No. 67/1986. 3. The plaintiff’s case was that the plaintiff had purchased ‘A’ Schedule property in terms of sale deed dated 1.2.1982 marked as Exhibit. P1 from one Shekharappa who had purchased the property from one Narayanaswamy through another sale deed dated 11.6.1980 marked as Exhibit P2; that the suit schedule property measured IT x99'; that subsequent to the purchase of the property, the plaintiff-purchaser had noticed encroachment of the portion of the property measuring IT x 15' described as ‘B’ Schedule property and it was for recovery of possession of this portion, suit had been laid and after removing the temporary structure that had been put up by the defendant. 4. 4. Though the defendant had disputed the title of the plaintiff and had also contended that he had not encroached on any portion of the plaintiff’s property, but had put up structure on the property belonging to Shimoga City Municipality, i.e., on a portion of conservancy lying behind the property purchased by the plaintiff and had prayed for dismissal of the suit, the attention of the trial court was not very much drawn to this aspect and the suit had nevertheless been decreed. 5. Further developments as noticed earlier had taken place and subsequently the lower appellate court being of the view that while the plaintiff had not proved such positive encroachment by the defendant into his property i.e., the property which he had purchased under the sale deed Exhibit.P 1 and on the other hand the Court Commissioner’s report to the findings of which both the parties had agreed will abide without any objection having indicated that there was no encroachment by the defendant into property of the plaintiff and that the property of the plaintiff and the property of the defendant were separate and independent properties thought it fit to allow the appeal and set aside the Judgment and decree of the trial court. 6. It is under such circumstances, the present appeal by the aggrieved plaintiff under Section 100 of the Code of Civil Procedure. 7. This court while admitting this appeal had framed the following substantial question of law for examination. “Whether the appreciation of the evidence by the lower appellate court is perverse? “ 8. The Hon’ble Supreme Court had an occasion to indicate that a question of law, a substantial question of law at that should be one arising in the context of the case and should be showing awareness to the erroneous legal position as emerges from the Judgments and decrees of the courts below for admitting an appeal under Section 100 of the Code of Civil Procedure and question of law which is vague, general in nature and not with reference to the particular case cannot be considered as substantial question of law [See BOODIREDDY CIIANDRAIAH vsARIGELA LAXMI1]. The question of law as the time of admission does not necessarily indicate as to what aspect of legal position has been erroneously or wrongly decided by the lower appellate court and in what manner. 9. However, Sri. The question of law as the time of admission does not necessarily indicate as to what aspect of legal position has been erroneously or wrongly decided by the lower appellate court and in what manner. 9. However, Sri. Ashwin Halady, learned Counsel for the appellant would submit that the lower appellate court allowing the appeal heavily relying upon Exhibit.P6 to have been not proved by the plaintiff notwithstanding ExhibitP6 being a certified copy of a public document and was admissible in evidence even without examining the authors of the document is a substantial question of law which arises for consideration in this appeal; that the finding of the lower appellate court that non-examination of the author of Exhibit.P6 to prove the contents of the same has proved to be fatal to the case of the plaintiff, is a finding which is not sustainable in law, particularly as Exhibit.P6 is a certified copy of a survey sketch that had been prepared by the officials of the Municipality and forming part of the municipal records and is a copy of the records available with the City Municipal Corporation. 10. One another question of law which learned counsel for the appellant would submit for consideration is that the reliance placed by the court below to allow the appeal and set aside the judgment and decree of the trial court and to further dismiss the suit itself on the report of the Commissioner who had been appointed during the pendency of the appeal before the lower appellate court. notwithstanding the report being not in conformity with the pro~ requirements as contemplated under Order XXVI Rule 10 of the code of Civil Procedure, is clearly an error in law to understand the scope and meaning of rule 10 of order XXVI. 11. What is submitted is that the Commissioner had not obtained the signatures of the parties to the suit at the spot when he visited the spot and made recordings and also that the Commissioner had not produced the original sketch which he had prepared at the spot based on which he has indicated that he had prepared a final sketch enclosed to the report that he had submitted before the court below. 12. Sri. 12. Sri. Ashwin Halady, learned counsel for the appellant submits that these two procedural irregularities virtually vitiates the report of the court commissioner and placing reliance on the report by the lower appellate court is a procedural irregularity which affects the very conclusion as in the absence of the Commissioner’s report which is heavily relied upon by the lower appellate court for reversing the decree in favour of the defendant and if it is to be removed due to the irregularities noticed above, there was no material for the lower appellate court to reverse the well considered Judgment and decree of the trial court and therefore urges that the Judgment and decree passed by the trial court is to be restored. 13. While, the plaintiff claims title and possession of the suit schedule property through the sale deed ExP 1, the defendant’s case was that he had not trespassed into or encroached upon any part of the plaintiff’s d’ aUJ.ti s property or anyone else’s property; that the defendant did not have any knowledge about the plaintiff purchasing the suit schedule property and what the defendant had put up is a structure in a portion of the property belonging to the municipality. Therefore the actual issue was as to whether the plaintiff proves that the defendant had encroached into some portion of the property, which the plaintiff had purchased? 14. The trial court had framed three issues. The first issue viz whether the plaintiff proves that he is the owner and in lawful possession and enjoyment of the suit schedule property, which was held not necessary to be answered, the second issue as to whether the plaintiff proves that the defendant has encroached upon the suit schedule property and had put up a temporary structure without any authority of law, has been answered in the affirmative and the third issue ‘whether the plaintiff is entitled for the possession of ‘B’ schedule property as prayed for, has also been answered in the affirmative. That is how the suit came to be decreed. 15. While the plaintiff had examined himself as PWI and his neighbour one K Eswarappa has been examined as PW2, who mainly deposed about the location and measurement of the property. PW2 also deposed that he was present when the plaintiff purchased the property under sale deed ExP 1. That is how the suit came to be decreed. 15. While the plaintiff had examined himself as PWI and his neighbour one K Eswarappa has been examined as PW2, who mainly deposed about the location and measurement of the property. PW2 also deposed that he was present when the plaintiff purchased the property under sale deed ExP 1. He was in fact deposing that based on the sale deed the plaintiff had right over the property, which is towards east of jail road and had indicated that the plaintiff has right over the property even beyond 69 feet towards east of jail road. 16. On the side of the defendant, the original defendant Mariyappa was examined DWI and another person by name Annappa – a neighbour of the defendant - had deposed as DW2, indicating that the defendant was residing in the house, which he had constructed ever since in the year 1972 and the structure put up by the defendant is on the land belonging to municipality. 17. While on the side of the plaintiff, ExP 1 and P2 sale deeds, ExP3, endorsement, ExP4 certified copy of extract from demand register, ExP5 receipt and ExP6 certified copy of the sketch issued by the municipality had been marked, no documentary evidence was adduced on behalf of the defendant. 18. The trial court mainly relied upon the contents of ExPl and P2 and being of the view that suit ‘B’ schedule property was within the extent of what had been purchased under ExP 1 and P2, decreed the suit. Heavy reliance was placed on ExP6, certified copy of the sketch issued by the municipality, wherein it had been shown the suit schedule ‘B’ property and that having indicated as encroached portion, in suit ‘A: schedule property. 19. The lower appellate court declined to accept the credibility of ExP6 for the reason that the author of the sketch has not been examined to prove the same, and also placing reliance on the report of the court Commissioner, who had indicated that the property of the defendant Was separate from the property of the plaintiff, allowed the appeal and set aside the judgment and decree passed by the trial court and dismissed the suit. 20. 20. Appearing on behalf of the appellant, submission of Sri Ash win S Balady, is that the substantial questions as indicated in the earlier ­part of this judgment are the questions which really arise in this appeal and these questions have been wrongly decided by the lower appellate court. 21. A perusal of the judgment of the lower appellate court while indicates that the parties had agreed to abide by the report of the commissioner and they were on an understanding that they would abide by the report, being available on record, the learned Judge of lower appellate court did not find it necessary to hear the objections of either party to the commissioner’s report and relied on the commissioner’s report for rendering judgment, while I do not find any illegality in the findings recorded by the courts below, it cannot also be accepted to be a procedural irregularity committed by the lower appellate court, notwithstanding the learned counsel for the appellant drawing attention to the requirement of the provisions of Rule 10 of Order XXVI Cpc. The procedure would assume importance if the report [of the court commissioner] is to be questioned and challenged and if the parties initially had agreed by themselves to abide by the report, such questions does not arise. 22. In so far as the lower appellant court holding that the reliance placed by the trial court on ExP6 is totally erroneous and that the suit could not have been decreed on this piece of evidence is concerned. I find that the reasoning assigned by the learned judge of the lower appellate court is perfectly in order. I say so for the reason that while Exhibit.P6 the certified copy issued indicated it is a certified ‘copy of a public document and definitely does not require further proof by examining the person who had issued it etc., in the present case, the sketch ExP6 produced by the plaintiff is not merely for the purpose of indicating the layout plan of the area forming sites etc., but a portion marked as ‘encroached portion’ in the property said to have been purchased by the plaintiff. In fact, the sketch, which was prepared in the year 1981 itself was not even at the behest of the plaintiff, but appears to be at the behest of the vendor of the plaintiff. 23. In fact, the sketch, which was prepared in the year 1981 itself was not even at the behest of the plaintiff, but appears to be at the behest of the vendor of the plaintiff. 23. The special endorsement on the sketch that such portion is an encroached portion is not part of any record maintained by the municipality, but an addition into the existing record. If it is an addition because of some special knowledge of any official who prepared the sketch, it was incumbent upon the plaintiff to make good such a thing by examining such person/official who had issued the endorsement to prove as to under what authority and with what knowledge such an endorsement was issued and having not done so, it cannot be said that ExP6 for its entire contents had been proved, but the material part relevant for the plaintiff being the encroachment on the property of the plaintiff, this part definitely stands not proved, and therefore the learned judge of the lower appellate court is right in not placing reliance on ExP6 for such content of P6 which was not proved and was required to be proved. In the absence of any material apart from EXPG, it is very clear that the plaintiff had not proved the plaint averments that the defendant had encroached into any part of his property. 24. What further affects the case of the appellant -plaintiff is that while the recital in the sale deed indicated that the plaintiff had been put in possession of the property measuring 17' x 99' , it is on record that the plaintiff never got possession of entire extent of the property mentioned; that even as per ExP6, a portion of the property has been. encroached upon and if so, whether the plaintiff derives the right, title and interest over the entire extent of 17’x99' property described in ExP1 sale deed, itself becomes doubtful and not a thing which is proved. At any rate the plaintiff can never seek recovery of possession of any portion of the property, which he was not in possession, from the year 1972 onwards, a point of time when the plaintiff had no right to the entire portion or any portion of the property. The suit for recovery of possession therefore inevitably fails. 25. At any rate the plaintiff can never seek recovery of possession of any portion of the property, which he was not in possession, from the year 1972 onwards, a point of time when the plaintiff had no right to the entire portion or any portion of the property. The suit for recovery of possession therefore inevitably fails. 25. Even assuming for arguments’ sake that there is any possible incorrectness or improper reason assigned by the learned judge of the lower appellate court, the plaintiff having not made good his case of encroachment by the defendant, the suit can never be decreed and the lower appellate court has rights dismissed the suit. There is no scope for interference in the judgment and decree passed by the lower appellate court in this second appeal, exercising jurisdiction under Section 100 CPC. It is for this reason, this second appeal fails and is dismissed. 26. Parties to bear their own costs.