JUDGMENT A.S. Pachhapure, J. 1. The appellants herein have challenged the judgment and decree in RA No. 530 of 2005 (Old No. 41 of 1992 and 71 of 1976) allowing the appeal of contesting respondents and decreeing the suit of plaintiffs by setting aside the decree of dismissal. 2. The facts relevant for the purpose of this appeal are as under:- Parties will be referred as per their rank before the Trial Court for the sake of convenience. The appellants herein are the LRs of deceased first defendant whereas the respondents are the LRs of deceased plaintiffs. There was a partition between the plaintiffs and the defendants and 87 cents of land fell to the share of plaintiffs, whereas 69 cents fell to the share of defendants. As contended by the plaintiffs, there is a Well in between these two lands and the water in it to be shared by both the parties. As there was an obstruction to the use of Well water, the suit came to be instituted by the plaintiffs seeking injunction to restrain the defendants from causing obstruction to the use of well water. After recording the evidence, the suit came to be dismissed. The appeal was preferred by the plaintiffs and the matter was brought up to this Court in the first round of litigation. At the instance of plaintiffs, the matter was remitted back to the First Appellate Court. After dismissal of the appeal, the judgment in the second round of litigation of the First Appellate Court was challenged in this appeal in RSA No. 294 of 1993. At the instance of present appellants, the matter was remitted back to the First Appellate Court vide judgment and decree dated 09.01.1998 with a direction to appoint a Commissioner to inspect both the properties of the parties and identify their properties by demarcating the boundaries. In pursuance of this direction, the First Appellate Court appointed a Commissioner and after local inspection, the Commissioner submitted a report demarcating the boundaries. The appellants herein filed objections to the said commissioner's report on 23.09.2002 contending that the sketch is not accurate, the boundaries are not properly demarcated and that certain documents were not looked into by the Assistant Director of Land Records during inspection and on the aforesaid grounds in addition to other grounds, sought to reject the report. The appellants herein filed objections to the said commissioner's report on 23.09.2002 contending that the sketch is not accurate, the boundaries are not properly demarcated and that certain documents were not looked into by the Assistant Director of Land Records during inspection and on the aforesaid grounds in addition to other grounds, sought to reject the report. Later, the matter was adjourned to different other dates and on 04.02.2009, the appellants herein filed a memo seeking permission to examine the Commissioner and their request for examination was opposed orally by the respondents. On that day, the First Appellate Court posted the matter for judgment and it was adjourned on different other dates for judgment and ultimately on 25.04.2009, the appeal was allowed and judgment and decree of injunction was granted. It is this judgment and decree of the First Appellate Court which is challenged in this appeal. 3. After hearing the Counsel for parties, the following substantial question of law is framed for consideration:- "When in pursuance of the order of this Court dated 09.01.1998, the Commissioner was appointed by the First Appellate Court and when the appellants had made a request to examine the Commissioner to disprove the retort submitted by him, whether the First Appellate Court was justified in not passing any order on such request and allowed the appeal without giving opportunity to the appellants herein." 4. I have heard learned Counsel for both the parties. 5. Learned Counsel for the appellants would contend that when the report submitted by the Assistant Director of Land Records is contrary to the claim made by the plaintiffs as per the pleadings, he submits that opportunity could have been granted to the appellants herein to examine the Commissioner to disprove the said report, whereas learned Counsel for the respondents has supported the judgment and decree of the First Appellate Court. 6. It is not in dispute that the Commissioner was appointed by the First Appellate Court in pursuance of the direction of this Court vide order referred to supra for local inspection to demarcate the boundaries or 87 cents of land of the plaintiffs and 69 cents of land of the defendants, The Commissioner has inspected both the lands and submitted his report. Under the said report, the well in dispute has been shown within the boundaries of the land which fell to the share of plaintiffs. Under the said report, the well in dispute has been shown within the boundaries of the land which fell to the share of plaintiffs. It is because of this reason that the appellants herein had filed their objection contending that the report is not acceptable and has assigned reasons in the objection statement. 7. It is relevant to refer to the provisions of Order 26, Rule 10 sub-rule (2) CPC, which is extracted hereunder for the sake of convenience:- "10(2) – 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 as to his report, or as to the manner in which he has made the investigation." 8. When the Commissioner's report is filed after the inspection in pursuance of the direction issued by the Court, the report shall form part of the record, but the Court or parties with the permission of Court can examine the Commissioner personally with regard to the matter referred to in the report and as to the manner in which the inspection was made by the Commissioner. Sub-rule (3) also gives discretion to the Court that it may further enquire in the case if it finds that the report submitted is not satisfactory. So perusal of the aforesaid provision would indicate that the parties have a choice to examine the Commissioner in case if they are not agreeable for the report and particularly when they have filed objections to it. 9. Reliance is placed on the decision of this Court reported in Gopala Somayaji C. vs. R. Madhava Pai and another, 1988 (1) Kar. L.J. 499. It has been held that to disprove the accuracy of the report of Commissioner, it is open to the parties either to cross examine the Commissioner or lead independent evidence instead of calling fresh report in the light of objection raised. L.J. 499. It has been held that to disprove the accuracy of the report of Commissioner, it is open to the parties either to cross examine the Commissioner or lead independent evidence instead of calling fresh report in the light of objection raised. So, perusal of the aforesaid provisions and the principle laid down by this Court in the aforesaid judgment, it is very much clear that if any of the party objects to the Commissioner's report and makes a request for examination of the Commissioner, an opportunity has to be given. 10. It is relevant to note that though the appellants herein had filed objection statement to the Commissioner's report and they sought the permission by filing a memo to examine the Commissioner, the First Appellate Court did not pass any order on the memo either rejecting or granting their request. This approach of the First Appellate Court is improper and illegal. Hence, the judgment of the First Appellate Court based on the report aforesaid without giving opportunity to the appellants is erroneous and illegal and deservers to be set aside by remitting the matter to the First Appellate Court and giving opportunity to the appellants herein to examine the Commissioner and thereafter to proceed with the case in accordance with law. It is relevant to mention here that the report of Commissioner has to be considered in the context of direction issued by this Court dated 09.01.1998. Accordingly, the substantial question of law raised is answered in Negative. Consequently, the appeal is allowed and the judgment and decree of the First Appellate Court impugned in this appeal is set aside. The matter is remitted back to the First Appellate Court to afford an opportunity to the parties to examine the Commissioner and proceed to dispose of the appeal in accordance with law, preferably within 6 months from the date of communication of this order. To avoid the delay, both the parties are directed to appear before the First Appellate Court on 21.11.2013.