JUDGMENT AND ORDER : 1. Heard Mr. SK Ghosh, learned counsel for the appellants and Ms. B Sarma, learned counsel appearing on behalf of the respondents No. 1, 3, 12, 14(a), 15, 16, 18 and 19. 2. The present appellants are the defendants in Title Suit No. 240/1974 which was filed by one Ashwani Kumar Deb and Birendra Kumar Deb, the two plaintiffs and on their death the present respondents/plaintiffs are substituted. On the other hand, Hari Kumar Dutta Choudhury, the original appellant/defendant died whereafter his legal heirs were substituted vide order of this court dated 08.04.2009. 3. The case of the plaintiffs/respondents in brief is that their predecessor-in-interest Pulin Behari Deb took settlement of Schedule 1 land under KRS Patta No. 167, Dag No. 2637/2638 from the proforma defendant No. 3, Sri Sri Radha Madhav Bigraha on 18.01.1935 vide registered deed dated 21.01.1935. Subsequently, the dag numbers and patta numbers were converted to RS Patta No. 250 and dag No. 2854/2853 in re-settlement. The plaintiffs/respondents got the land partitioned vide a decree passed in a civil suit and thereafter they have been possessing the same by paying rent to the Bigraha. The plaintiffs/respondents constructed two storied building over the land covered by Dag No. 2853 on the western side of the PWD road. A land of 3 feet wide was left by the plaintiffs/respondents on the northern side east-west wise in length as per the municipal norms and 1 foot land was left for outlet of the drain water. The homestead land of the defendants/appellants is situated on the adjacent northern side of the land of plaintiffs/respondents and the same is covered by Dag No. 2851/2852. The defendants/appellants had no right, title and interest over the land covered by Dag No. 2853 and the same belonged to the plaintiffs/respondents. The defendants/appellants constructed their house in the year 1966 under the Silchar Municipality violating the conditions of the building permission in absence of the plaintiffs/respondents thereby encroached more or less 3 feet of land by way of constructing cook-shed and by erecting karnish. The said acts of the defendants/appellants clouded the right, title and interest of the plaintiffs/respondents over Schedule 2 suit land and as such sought for the relief of declaration of recovery of possession. 4. The said acts of the defendants/appellants clouded the right, title and interest of the plaintiffs/respondents over Schedule 2 suit land and as such sought for the relief of declaration of recovery of possession. 4. The defendants/appellants contested the suit by filing their written statement by taking the plea that they took settlement of land covered by Dag No. 2851 and 2852 from the proforma defendant No. 3, Sri Sri Radha Madhav Bigraha in the year 1930 and constructed their permanent house thereon. The boundary mark was erected and the same continued. A one storied building was subsequently constructed by taking due permission from the Silchar Municipality and completed the same without encroaching any land including the suit land. It is also pleaded that the plaintiffs/respondents never raised objection during the time of construction and the boundary on the southern side of their homestead land remained intact and there is no question of encroachment of the suit land. Accordingly, they prayed for the dismissal of the suit. 5. On the basis of the pleadings of both the parties, the learned trial court framed the following issues:- 1. Is there any cause of action for the suit 2. Is the suit barred by limitation? 3. Did the defendants broke any of the conditions of Municipal permit at the time of construction of pucca building as alleged by the plaintiffs? 4. Did the plaintiffs ever possess the path way measuring an area of about 3 feet to the just contiguous to the plaintiffs’ two storied house to the enter into their holding? 5. Have the plaintiffs entered into their holding by the middle portion of the two storied houses which fall in the shares of both plaintiffs and their brother late Pulin Ch. Deb? 6. Did the defendants alone possess the path way which is to the contiguous north of plaintiffs holding boundary line? 7. Are the plaintiffs possess their respective area of land by putting pucca wall on the north side of their boundary? 8. To what relief, if any, the plaintiffs are entitled? 9. Whether the defendants have encroached any land of the plaintiffs? 6. During the pendency of the suit, three Amin Commissioners’ report were called by the trial court. Subsequent to that, an Advocate Commissioner was appointed and the said Commissioner furnished his report vide Exhibit-15. 8. To what relief, if any, the plaintiffs are entitled? 9. Whether the defendants have encroached any land of the plaintiffs? 6. During the pendency of the suit, three Amin Commissioners’ report were called by the trial court. Subsequent to that, an Advocate Commissioner was appointed and the said Commissioner furnished his report vide Exhibit-15. The learned trial court further held a local inspection of the suit land and the report forms the part of the record. Being aggrieved by the defendants/appellants with respect to the writ issued to the Amin Commissioner and the subsequent report, they preferred Civil Revision No. 368/1989 before this court. However, the original title suit No. 240/1974 was dismissed for default and the same was restored and thereafter the defendants/appellants preferred the said revision before this court challenging the restoration order of the said title suit 240/1974. In the said revision, the order of the trial court was also impugned with respect to the Amin Commission’s report and the objections raised therein which were not considered by the trial court. Finally, this court vide order dated 05.09.1989 directed the learned trial court to apply its mind afresh to the objection filed by the appellants/defendants relating to the report of the Amin Commissioner and the same was directed to be taken up at the time of final hearing of the suit. Against the said order dated 05.09.1989, Review Application (T) No. 446/1989 was filed in the said civil revision No. 368/1989 in order to clarify the order passed earlier i.e. on 05.09.1989. This court accordingly allowed the review petition wherein it was clarified that the rejection order of the objection petition objecting the Amin Commission’s report under no circumstances be taken into consideration while considering the objection raised by the defendants/appellants afresh. 7. The learned trial court vide judgment and decree dated 28.05.1997 dismissed the suit of the plaintiffs/respondents. The learned trial court took issue No. 9 and came to the finding that the defendants/appellants had not encroached into any portion of land of the plaintiffs/respondents. 7. The learned trial court vide judgment and decree dated 28.05.1997 dismissed the suit of the plaintiffs/respondents. The learned trial court took issue No. 9 and came to the finding that the defendants/appellants had not encroached into any portion of land of the plaintiffs/respondents. While discussing issue No. 9, the learned trial court took into consideration the oral evidence of both the parties and also considered the memorandum of reports of inspection by the court and finally came to the finding that neither party to the suit had followed the municipal norms and also came to the finding that the plaintiffs/respondents do not use this passage which is in dispute. Relying heavily on the inspection report of the court, the learned trial court came to the finding in issue No. 9 as stated hereinabove. 8. Being aggrieved, the plaintiffs/respondents preferred Title Appeal No. 39/1997 in the court of learned Civil Judge (Sr. Divn.) No. 2, Silchar and the said learned first appellate court after hearing the parties referred the findings of issue No. 9 of the trial court thereby holding that the present defendants /appellants encroached into the Schedule 2 suit land as described in the plaint. Thereafter, the aggrieved defendants/appellants have preferred this second appeal which was admitted on 25.06.2002 on the following substantial questions of law:- (1) Whether the impugned appellate judgment is a judgment of reversal in accordance with law? (2) Whether the perverse finding of the learned Appellate Court below that the defendant appellant did not prefer any petition for revision of the order accepting the report of the Amin Commissioner after revival of the Title Suit has vitiated the decision? (3) Whether the decision of the learned Appellate Court below is vitiated for non-consideration of relevant materials and evidence on record? 9. Mr. Ghosh, learned counsel for the appellants, submits that the learned first appellate court while passing the impugned judgment took into consideration the Amin Commission’s report i.e. Exhibit-2 and that the defendants/appellants preferred a revision against the acceptance of the report of the Amin Commissioner, Devendra Kumar Nath but as the original title suit was dismissed for default, the High Court was pleased to reject the same with an observation that if the civil suit is revived, the petitioners (defendants/appellants) shall have the right to revive the said revision petition. But after revival of the said suit, as per findings of the learned first appellate court, the defendants/appellants did not prefer any revision for the same. Accordingly, the learned first appellate court accepted the Amin Commissioner’s report. This, according to Mr. Ghosh, is purely a wrong finding inasmuch as after restoration of the title suit, the defendants/appellants vide order dated 04.01.1990 passed in Review application (T) No. 446/1989 in Civil Revision No. 368/1989 clarified the order passed earlier whereby this court directed the trial court to consider the objection against acceptance of the Amin Commission’s report on merit and such finding shall have no effect so far the earlier order of the trial court is concerned. It is also submitted by Mr. Ghosh that the trial court on its own inspected the suit land and came to the finding that both the parties to the suit were at fault by non-observing the rules of the Silchar Municipality. It is also submitted that the Advocate Commissioner’s report vide Exhibit-15 discovered totally a new finding having no pleadings both in the plaint and the written statement of the parties inasmuch as the said Exhibit-15 shows that there existed a pillar thereby demarcating the land of both the plaintiffs and defendants. Having no such pleadings with regard to the pillar or demarcation wall, the learned first appellate court was wrong in accepting the findings of Exhibit-15. Mr. Ghosh accordingly submits that the observation made with regard to the report Exhibit-2 of the Amin Commissioner by the learned first appellate court itself gives the reply to the substantial questions of law so formulated, in favour of the appellants/defendants. Accordingly, the same be decided in favour of the appellants/defendants. 10. Ms. B Sarma, learned counsel for the respondents/plaintiffs, submits that there is neither illegality nor any perversity in the observation made by the learned first appellate court. It is also submitted that even if the said order passed by this court was considered, then also the finding of the learned first appellate court cannot be set at rest, inasmuch as, the learned first appellate court has considered both material piece of evidence and the various reports of commission. Accordingly, the substantial questions of law so formulated have no bearing in the findings given by the learned first appellate court on the basis of materials on record. 11. Considered the submissions of both the learned counsels. Accordingly, the substantial questions of law so formulated have no bearing in the findings given by the learned first appellate court on the basis of materials on record. 11. Considered the submissions of both the learned counsels. In the case of Silchar Municipal Board vs. Eastern Tea Estates Pvt. Ltd. and anotherreported in 1993 (2) GLR 445, this court held that Order XXVI Rule 9 of the Code of Civil Procedure empowers the court to appoint a Commission to make local investigation where it deems such investigation to be requisite or proper for the purpose of elucidating any matter in dispute. The commissioner is obliged to hold such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. The report of the Commissioner and evidence taken by him shall be evidence in the suit and shall form part of the record. The Court may examine the Commissioner 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. Where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further enquiry to be made as it shall think fit. The object of the local investigation is not so much to collect evidence which can be taken in court but to obtain evidence which from its very peculiar nature can only be had on the spot. The Court has a discretion to issue Commission for local investigation or not and the Commissioner has a duty to make local inspection after due notice to the parties and observe various reports directed to be reported upon by the Court and make a faithful report. The report shall form part of the record. 12. It was also held that the Court is not precluded from considering the report and the objections in the light of evidence adduced at the trial. The Commissioner’s report does not conclude the matter in issue. It is only one piece of evidence which ultimately has to be appreciated of along with other evidence in the case, before the Court can come to a conclusion over a disputed issue. The Commissioner’s report does not conclude the matter in issue. It is only one piece of evidence which ultimately has to be appreciated of along with other evidence in the case, before the Court can come to a conclusion over a disputed issue. Accordingly, the ratio laid down in this decision is that sole reliance on the piece of a report cannot be the basis for deciding an issue between the parties to a suit. 13. The learned first appellate court while reversing the finding of the issue No. 9 by the learned trial court held that the said finding was erroneous without considering other factors such as report of Amin Commissioner, report of the Advocate Commissioner as well as the memorandum of the Court and the evidence adduced by the parties. It is submitted that the inspection report of the courts below suggests that both the party violated the municipal rules and as such there was no case for the plaintiffs to come to the court. Similarly, as submitted, the Amin Commissioner also opined that between the two houses there existed 3 feet of land which is a passage and under such circumstances, without considering the said findings, the learned court below has considered the Amin Commission’s report in favour of the plaintiffs/respondents without giving the benefit of the findings to the defendants/appellants. 14. The submissions of the learned counsel appearing for the parties and the findings of the learned first appellate court goes to show that there is an objection raised by the defendants/appellants with respect to the Amin Commission’s report and as per the direction of this court, the findings of rejection of the objection by the defendants/appellants ought not to be taken into consideration while deciding the matter finally, was not considered by the learned first appellate court and without considering the same, the learned first appellate court has considered the Amin Commissioner’s report and as submitted by Mr. Ghosh, the said finding and acceptance of the Amin Commission’s report had changed the findings of the learned trial court which caused prejudice to the defendants/appellants. Ghosh, the said finding and acceptance of the Amin Commission’s report had changed the findings of the learned trial court which caused prejudice to the defendants/appellants. Considering the same, the judgment passed by the learned first appellate court in Title Appeal No. 39/1997 impugned in the present second appeal is set aside as a consequence of the finding of the substantial question of law which goes in favour of the appellants/defendants and the Title Appeal No. 39/1997 is remanded back to the learned first appellate court for deciding the same afresh and allowing the defendants/appellants to raise objection against the Amin Commission’s report as per the direction of this Court 15. At the time of hearing of this appeal, the LCR was not tagged with this case. However, on the consent of both the learned counsels for the parties to the second appeal and on the basis of the admitted documents as supplied by both the learned counsels, this second appeal has been disposed of. 16. The learned first appellate court on receipt of the records shall be at liberty to ask for a fresh Commission’s report within the ambit and scope of Order XXVI Rule 9 of the CPC and make an endeavour to dispose of the matter preferably within a period of 6 (six) months from the date of receipt of copy of this order. 17. If in the mean time the LCRs of this case are being received by the Registry, the same shall be sent back to the concerned Court immediately by the Registry.