JUDGMENT Saeed-Uz-Zaman Siddiqi,J. These appeals have been preferred against the judgment and decree dated 28.05.2001 passed by Learned VI th Additional District Judge, Faizabad in Civil Appeal No. 83 of 1998 by which the judgment and decree dated 10.03.1998 passed by learned Civil Judge (Senior Division) in Regular Suit No. 486 of 1994 has been set aside and plaintiff's suit for injunction has been partly decreed and defendant no. 3 has been directed to rectify the sale-deed. 2. Brief facts of the case are that the plaintiff Misri Lal Gupta filed suit for injunction on the ground that the defendants have occupied his land shown with letters as D, E, F, G and have raised constructions over it. The plaintiff has prayed for relief for injunction by removal of construction. The plaintiff has alleged that he has purchased six biswa on Plot No. 359 from Mahant Damodar Das and his name has been recorded in the revenue records and, as such, the disputed land lies by the side of Faizabad-Ayodhya Road and is adjacent towards south of Panch Koshi Parikarma way. The land of defendant Nos. 1 & 2 bearing plot no. 360 lies towards east of plot No. 359. There is a building consisting of three rooms owned by Gurukul lying in North-western boundary of plot No. 360, where a board of Gurukul Nihsulk Ausdhalaya is fixed which is shown with letters Ya, Ra, La, Wa in the site plan attached with the plaint. On the north-western boundary of plot No. 359, the plaintiff's shop measuring 40 feet X 30 feet is existing since years. There was an agreement between the plaintiff and defendant No. 3, by which the 15 feet X 60 feet land adjacent towards west of land Ya, Ra, La, Wa of plot No. 359 was sold. Thereafter, the plaintiff divided plot No. 359 in a number of plots and, thereafter, a sale-deed was executed by defendant No. 4 to 7, in respect of plot no. 360 towards west of the adjacent land. In October, 1994, the defendant No. 3 encroached by raising construction adjacent to line EF and mixed with line shown with letters GD which was purchased. When the plaintiff raised objections, the defendant no. 3 promises to remove the constructions. But, ultimately, the defendant resiled with his promises with the connivance of defendant No. 1 & 2. In October, 1994, the defendant No. 3 encroached by raising construction adjacent to line EF and mixed with line shown with letters GD which was purchased. When the plaintiff raised objections, the defendant no. 3 promises to remove the constructions. But, ultimately, the defendant resiled with his promises with the connivance of defendant No. 1 & 2. Due to this conspiracy between the defendant Nos. 1 & 2 on one hand and defendant No. 3 on the other hand, the defendant Nos. 1 & 2 started digging foundation on land shown with letters as D, E. The plaintiff moved application to the Police Station and the digging of foundation was stopped with the help of the Police. Then, the suit was filed and in spite of ad interim injunction order, the defendant Nos. 1 & 2 with the connivance of other defendants raised wall DE and DG on plot No. 359 and thereby illegally occupied the said portion of the land, hence the suit was filed. 3. The defendant Nos. 1 & 2 contested the suit, inter alia, on the ground that the site plan attached with the plaint is wrong; the disputed land does not lie in plot no.359, it lies in the western portion of plot no.360; the Aushadhalaya consisting of four rooms was sanctioned by the Municipality in plot no.360 in the year 1966; the defendant nos.1 and 2 have earlier got three rooms measuring 14 feet X 8 feet and 12 feet X 12 feet constructed but due to financial constraint construction of 3 feet X 12 feet X 15 feet could not be constructed and, as such they got sale deed of eastern portion of plot no.359 on 15.10.1987 executed in favour of the defendant no.3 and his house was completed in the year 1988 and since then he is in possession as owner; in addition to the sale deed in favour of defendant no.3, defendant no.3 and 4 got a sale deed executed of additional portion on 7.1.1992. 4. The defendant nos.3 to 7 filed written statements and denied the pleadings of the plaintiff dated 4.1.1995 and pleaded that the portion of plot no.359 which was acquired for Panchkosi Parikrama Marg has resulted in payment of compensation to the plaintiff. 5. 4. The defendant nos.3 to 7 filed written statements and denied the pleadings of the plaintiff dated 4.1.1995 and pleaded that the portion of plot no.359 which was acquired for Panchkosi Parikrama Marg has resulted in payment of compensation to the plaintiff. 5. On the basis of pleadings of the parties, learned Trial Court framed issues and issued survey commission which was also confirmed but while deciding the case learned Trial Court rejected the survey commission report and ultimately the suit was dismissed with costs. Feeling aggrieved with the judgment and decree the plaintiff preferred an appeal bearing civil appeal no.83 of 1998 by which the judgment and decree of the learned Trial court has been set aside and appeal was partly allowed and the suit was partly decreed. Feeling aggrieved by the judgment and decree passed by the learned First Appellate Court, defendant Nos. 1 & 2 preferred Second Appeal No. 287 of 2001, which was admitted on the following substantial questions of law: - 1. Whether the lower appellate court is not formulating the points of determination as required under Order 41 Rule 31, Code of Civil Procedure, the absence of which has materially prejudiced the appellants, the judgment and decree rendered by the lower appellate court stand vitiated? 2. Whether according to the plaintiff-respondent the land in dispute was said to be situate in Plot No.359 while according to the appellants it was said to be situated in Plot No.360 and the trial court on the basis of the measurement and Survey Map came to the conclusion that the land and constructions do not lie in Plot No.359 but lie in Plot No.360 thereby discarding the Commissioner's Map and Report and dismissing the suit of the plaintiff-respondent, the appellate court could ignore the findings recorded by the trial court only on the ground that the trial court could not go against the Commissioner's Map and Report brought on record?? 6. The plaintiff preferred second Appeal No. 312 of 2001 which has been admitted on following substantial questions of law: - ?1. Whether the violation of provisions of Order 41 Rule 31 vitiates the appellate judgment? 2. Whether the learned lower Appellate Court could make out a third case and grant relief to the plaintiff, which was event not pleaded, after holding that the suit is barred by estoppel and acquiesce?? 7. Whether the violation of provisions of Order 41 Rule 31 vitiates the appellate judgment? 2. Whether the learned lower Appellate Court could make out a third case and grant relief to the plaintiff, which was event not pleaded, after holding that the suit is barred by estoppel and acquiesce?? 7. I have heard learned counsel for both the parties and gone through the records. 8. The basic issue in this appeal is whether the disputed land lies in plot No. 359 as pleaded by the plaintiff or it is situated in plot No. 360. The subsidiary points are whether the learned First Appellate Court can make out the third case by holding that the suit is barred by estoppel and acquiesce. The third point relate to non-framing of points of determination by the learned First Appellate Court. 9. Obviously, the plaintiff has claimed right to sue on the ground that the disputed land is part of plot No. 359. In order to substantiate his claim, the plaintiff got survey commission issued. The report of survey commission is paper No. 53-C alongwith the site plan against which both the parties have filed objection. The learned Trial Court confirmed the report of the survey commission along with the site plan by a detailed order dated 05.12.1996. Thereafter, the suit proceeded. Interrogatories were also served and evidence was produced by both the parties. But after hearing final arguments, the learned Trial Judge, while deciding Suit No. 1, 2, 3, 4 & 5 together rejected the report of the survey commission by observing artificial circumstances and determined that under the circumstances, the measurements of survey commission cannot be correct. The learned Trial Court has also held that the report of the survey commission cannot be relied upon on the ground that the Survey Commissioner has not concluded survey by examining and verifying the measurements from two opposite directions and has undertaken all the measurements on the basis of one Sihadda marked as A. The learned First Appellate Court has dealt with the matter of report of the survey commission by the learned Trial Court and has rightly relied upon the same. 10. At this stage, I have carefully perused the report of the survey commission, the objections filed against it by the parties, and order of confirmation of report dated 05.12.1996. 10. At this stage, I have carefully perused the report of the survey commission, the objections filed against it by the parties, and order of confirmation of report dated 05.12.1996. The learned Trial Court has wisely appreciated all the points involved in survey commission report and has rightly confirmed it. The Survey Commissioner has undertaken huge exercise in measuring several plots and reaching on the fixed points (Sihadda). The said face point has also been verified by two other fixed points and the railway line. Merely by changing of the Presiding Officer, a survey commission report already confirmed cannot be easily rejected without assigning any cogent reason and, if the learned Trial Judge, while deciding a case finally reaches to the conclusion that the Survey Commission report filed earlier in the case and confirmed by an order passed earlier deserves to be rejected, it is incumbent upon the learned Trial Judge to afford fresh opportunity to the parties to get another survey commission report issued. By the impugned judgment of the learned Trial Court, the opportunity to lead evidence has been illegally withheld by the learned Trial Court. Particularly, in this case the survey commission report is very exhaustive and most reliable and is in accordance with the settled rules of survey. 10. Railway line which is existing since centuries has to be treated to be a fixed point as it is regularly maintained and is existing at its place since the date of its inception. In Mangal Misir and anr. v. Ramlagan Misir and Ors. AIR 1933 (Ald) 65, this Court has held as under: - ?Once a Commissioner has been appointed and has submitted his, report, the Court has no right, unless' it comes to the conclusion that the Commissioner has so misconceived his fundamental duties as to render his report useless, to appoint another Commissioner. There is no warrant in law for the appointment of a succession of Commissioners unless the Court for reasons to be recorded by it, is of the opinion that the report of the Commissioner appointed by it, and objected to by one party or the other, is wholly valueless, and further elucidation of the matter in dispute between the parties is necessary by the appointment of a more competent Commissioner.? 11. The Privy Council in the case of Chandan Mull Indra Kumar and Ors. v. Chiman Lal Girdhar Das Parekh and anr. 11. The Privy Council in the case of Chandan Mull Indra Kumar and Ors. v. Chiman Lal Girdhar Das Parekh and anr. AIR 1940 PC 3 , has held as under: - ?It is not safe for a Court to act as an expert and to overrule the elaborate report of a Commissioner whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report, and who had not blindly adopted the assertions of either party.? 12. In the above mentioned case the Privy Council has further held as under: - ?This in their Lordships' judgment is a correct statement of the principle to be adopted in dealing with the commissioner's report. It is substantially the principle already laid down by this Board in 13 MIA 607 Ranee Surut Soondree Debea v. Baboo Prosonno Coomar Tagore at page 617.? 13. Lately, in M/s Roy and Col and anr. v. Sm. Nani Bala Dey and Ors. AIR 1979 Calcutta 50, following observations have been made: - ?Then about the report of the Pleader Commissioner. Reference may be made to the famous decision of the Judicial Committee in Chandan Mull's case reported in 44 Cal WN 205 at P.212: (AIR, 1940 PC 3, at pp.5, 6) to show that Commissioner's report should not be rejected except on clearly defined and sufficient grounds. The Court should not act as an expert and overrule the Commissioner's report whose integrity and carefulness are not questioned and who did not blindly accept the assertion of either party.? 14. It is also established that in case of conflict between the area and boundary, description of boundary will prevail. I hold it on the strength of law laid down in a case reported in AIR 1948 PC 207 at p.209. Learned Trial Court has not given any exhaustive ground of dissent which may be treated as legally sound to disbelieve the report of the Commissioner. In Raj Kumar v. Puran Chand, AIR 1986 Punjab & Haryana 57, Punjab and Haryana High Court has held as under: - ?It is not safe for a Court to act as an expert and to overrule the elaborate report of a Commissioner whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report, and who had not blindly adopted the assertions of either party.? 15. 15. It is needless to say that taking into consideration the provisions contained in Section 8 of Privy Council Jurisdiction Act, 1949 read with Article 374 (2) of the Constitution of India, it is apparent that decision of Privy Council has the effect as if it were the order made by the Hon'ble Apex Court and, therefore, binding to all Courts in India, under Article 141 of the Constitution. While rejecting the report of the Survey Commissioner, the learned Trial Court ignored the objections filed against it by the parties which constitute an important item of evidence which could not have been ignored by the learned Trial Court while disposing of the suit. 16. The next point raised by the appellants was that the learned First Appellate Court has not complied with the provisions contained in Order 41 Rule 31 of the Code of Civil Procedure. This argument is neither tenable at law nor on facts. The learned First Appellate Court has reproduced the issues framed by the learned Trial Court and has proceeded on to decide the case in accordance with the issues framed. In view of this fact non-compliance of the provisions contained in order 41 Rule 31 (a) of the Code of Civil Procedure deserves to be ignored because there has been substantial compliance with it. The learned First Appellate Court has considered the entire evidence on record and discussed the same in detail, come to any conclusion and its findings are supported by reasons even though point has not been framed by the learned First Appellate Court, there is substantial compliance with the provisions of Order 41 Rule 31 of the Code of Civil Procedure and the judgment is not, in any manner, vitiated by the absence of a point of determination. Whereas, there is an honest endeavour on the part of the learned First Appellate Court to consider the controversy between the parties and there is proper appraisement of the respective cases and weighing and balancing the evidence, facts and other consideration appearing on both sides, is clearly manifest by the perusal of judgment of learned First Appellate Court, it would be a valid judgment, even though it does not contain points of determination. The Hon'ble Apex Court in the case of G.Amalorpavam and Ors. v. R.C. Diocese of Madurai and Ors. The Hon'ble Apex Court in the case of G.Amalorpavam and Ors. v. R.C. Diocese of Madurai and Ors. 2006 (24) LCD 849, has held as under: - ?The object of the Rule in making it incumbent upon the appellate court to frame points for determination and to cite reasons for the decision is to focus attention of the Court on the rival contentions which arise for determination and also to provide litigant parties opportunity in understanding the ground upon which the decision is founded with a view to enable them to know the basis of the decision and if so considered appropriate and so advised to avail the remedy of Second Appeal conferred by Section 100 CPC? 17. In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 , the Hon'ble Supreme Court has made following observations: - ?The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. The task of an appellate court affirming the findings of the trial court is an easier one. The appellate court agreeing with the view of the trial court need not restate the effect of the evidence or reiterate the reasons given by the trial court; expression of general agreement with reasons given by the court, decision of which is under appeal, would ordinarily suffice (Girijanandini Devi v. Bijendra Narain Choudhary ( AIR 1967 SC 1124 )). We would, however, like to sound a note of caution. Expression of general agreement with the findings recorded in the judgment under appeal should not be a device or camouflage adopted by the appellate court for shirking the duty cast on it. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. While writing a judgment of reversal the appellate court must remain conscious of two principles. Firstly, the findings of fact based on conflicting evidence arrived at by the trial court must weigh with the appellate court, more so when the findings are based on oral evidence recorded by the same Presiding Judge who authors the judgment. This certainly does not mean that when an appeal lies on facts, the appellate court is not competent to reverse a finding of fact arrived at by the trial Judge. As a matter of law if the appraisal of the evidence by the trial Court suffers from a material irregularity or is based on inadmissible evidence or on conjectures and surmises, the appellate court is entitled to interfere with the finding of fact. (Madhusudan Das v. Narayanibai ( (1983) 1 SCC 35 : AIR 1983 SC 114 )). The rule is - and it is nothing more than a rule of practice - that when there is conflict of oral evidence of the parties on any matter in issue and the decision hinges upon the credibility of witnesses, then unless there is some special feature about the evidence of a particular witness which has escaped the trial Judge's notice or there is a sufficient balance of improbability to displace his opinion as to where the credibility lie, the appellate court should not interfere with the finding of the trial Judge on a question of fact. (Sarju Pershad Ramdeo Sahu v. Jwaleshwari Pratap Narain Singh AIR 1951 SC 120 ) Secondly, while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. We need only remind the first appellate courts of the additional obligation cast on them by the scheme of the present Section 100 substituted in the Code. The first appellate court continues, as before, to be a final court of facts; pure findings of fact remain immune from challenge before the High Court in second appeal. Now the first appellate court is also a final court of law in the sense that its decision on a question of law even if erroneous may not be vulnerable before the High Court in second appeal because the jurisdiction of the High Court has now ceased to be available to correct the errors of law or the erroneous findings of the first appellate court even on questions of law unless such question of law be a substantial one." 18. It has been argued by learned counsel for the appellants that the learned First Appellate Court has not formulated points for determination as discussed above nor has named the witnesses while considering the oral evidence. As discussed earlier, learned First Appellate Court has discussed the entire judgment in its entirety and it has discussed the entire evidence on record. The name or not naming of witness, is an irrelevant fact when the discussion of statement of witness is elaborate. 19. Learned counsel for the appellants also submitted that confirmation of report of survey commission may be read as evidence but any opinion expressed therein by the Commissioner is neither conclusive nor binding on the Court. I fully agree with this condition. Any opinion whatsoever does not form part of the evidence. Learned First Appellate Court has not relied upon any opinion whatsoever. 20. It was also argued by learned counsel for appellants that the learned First Appellate Court cannot make out a new case, it was not pleaded by the parties and reliance was placed upon the law laid down by the Hon'ble Apex Court in the case of Siddu Venkappa Devadiga v. Smt. Ragu S. Devadiga and Ors. AIR 1977 SC 890 and Gulabrao Balwantrao Shinde and Ors. v. Chhabubai Balwantrao Shinde and Ors. AIR 2003 SC 160 . 21. AIR 1977 SC 890 and Gulabrao Balwantrao Shinde and Ors. v. Chhabubai Balwantrao Shinde and Ors. AIR 2003 SC 160 . 21. I am fully in agreement with the law laid by the Hon'ble Apex Court which is settled law of the land but the learned First Appellate Court has not introduced any new case and has decided the case on the evidence available on the records. A simple complication arising out of the lapse of time is that the area of plot no.359 is admittedly 1 Bigha 6 Biswa and it has been found slightly more than the recorded area, for which learned First Appellate Court has considered and reached to the conclusion that this mistake can be rectified by the rectification of the sale deed and due to this reason the suit has partly been decreed. 22. On the basis of discussions made above, I concur with the findings of the learned First Appellate Court that the report of survey commission deserves to be relied upon. I also find that it is strong piece of evidence to decide the disputes between the parties. Learned First Appellate Court has also rightly observed that the disputed land is part of plot no.359. I also concur with the findings of the learned First Appellate Court that difference of one or two Katthas in the survey commission report deserves to be ignored as it may occur in natural course of business. The plaintiff is accordingly entitled to the reliefs claimed relating to land shown with red colour and marked with letters D,E,F & G in the site plan produced by the Commissioner paper no.53-C. Learned First Appellate Court has directed the defendant no.3 to rectify the sale deed. This relief does not find place in the plaint and it is settled that a Civil Court cannot introduce its own case. The only relief claimed in the plaint is that the suit for possession by demolition relating to land shown with letters D, E, F,G be granted. The defendants be restrained through permanent injunction not to obstruct the 18 feet land lying towards Gurukul Nihsulk Chikitsalaya and the construction raised by defendant nos. 1 & 2 if any, be removed and the way towards west of line EF be not allowed to be raised so as to obstruct the way falling towards west of line EF. The defendants be restrained through permanent injunction not to obstruct the 18 feet land lying towards Gurukul Nihsulk Chikitsalaya and the construction raised by defendant nos. 1 & 2 if any, be removed and the way towards west of line EF be not allowed to be raised so as to obstruct the way falling towards west of line EF. In view of this fact, the suit of the plaintiff should have been decreed in toto by the learned First Appellate Court and partial decree as introduced by the learned First Appellate Court is incorrect, which deserves to be modified. 23. The learned First Appellate court has not given any reasons for not decreeing the suit of the plaintiff in toto and instead it has directed the defendant Nos. 1 & 2 to get their sale-deed rectified as it is an equitable relief. The learned First Appellate Court has further observed that the entire relief is barred by estoppel and acquiesce. The entire dispute arose between the parties in the year 1988 and in the year 1994 when the suit was filed. There is no iota of evidence to prove that the suit is barred by the principles of estoppel and acquiesce. As stated earlier, civil court cannot introduce its own case. On the other hand, it is also stated that no relief can be denied on presumptions. The requirement of cogent evidence can form basis of a Court's determination. 24. In suo moto, the rectification of document directed by the learned First Appellate Court is not permissible in view of Section 26 of Specific Relief Act, 1963 which has a limited application and can only be claimed by the parties to the instrument. Clause IV of Section 26 of Specific Relief Act, 1963 provides that such a relief cannot be granted by the Court, unless it is specifically claimed. The matter has been considered by the Hon'ble Apex Court in Subhadra & Ors. vs. Thankam [ AIR 2010 SC 3031 . The matter was again considered by the Hon'ble Apex Court in the case of State of Karnataka & Ors. vs. K.K. Mohandas & Ors. [ AIR 2007 SC 2917 and in Joseph John Peter Sandy vs. Veronica Thomas Rajkumar [ 2013 AIR SCW 2604 ], in which following observations have been made: - ?7. The matter was again considered by the Hon'ble Apex Court in the case of State of Karnataka & Ors. vs. K.K. Mohandas & Ors. [ AIR 2007 SC 2917 and in Joseph John Peter Sandy vs. Veronica Thomas Rajkumar [ 2013 AIR SCW 2604 ], in which following observations have been made: - ?7. Thus, in view of the above, it can be held that Section 26 of the Act has a limited application, and is applicable only where it is pleaded and proved that through fraud or mutual mistake of the parties, the real intention of the parties is not expressed in relation to an instrument. Such rectification is permissible only by the parties to the instrument and by none else.? 25. On the basis of discussions as made above, the learned First Appellate Court should have allowed the appeal in spite of partly allowing it. In either case, both the second appeals are dismissed cost costs throughout with modification that the plaintiff's suit for injunction is decreed with costs throughout and the defendants are directed to remove the constructions on the land shown with letters D,E,F & G in the Commissioner's map within three months from today, failing which, the plaintiff shall be entitled to get removed through the agency of learned Trial Court. The site plan prepared by the Survey Commissioner paper No. 53-C shall be made part of the decree. The defendants are further restrained from interfering in the plaintiff's possession over the property and from causing any objection in the way.