JUDGMENT 1. This second appeal preferred by the appellant/defendant was admitted for hearing on the following substantial questions of law : ''Whether the first Appellate Court was legally justified in arriving to the conclusion that the respondent/plaintiff has proved the encroachment of the appellant/defendant over the suit property by relying upon that report Ex. P/7 submitted by the Commissioner ? or whether the above finding is perverse ?'' (For the sake of convenience, parties would be referred hereinafter as per their status and ranking shown in the suit before the trial Court.) 2. Plaintiff filed a civil suit for declaration of title, possession and permanent injunction stating inter alia that she is the titleholder of land bearing Khasra No. 6442 which consists of plot No. 174 area 900 sq. ft. and plot No. 179 area 1800 sq. ft. in total 2700 sq. ft situated at Kohka, Patwari Halka No. 69/14, Durg which she purchased by registered sale deed in the year 1976. Out of the said land, defendant has unauthorizedly encroached upon 1,100 sq. ft. of the land which is a part of plot No. 179 (suit land), as such, she is entitled for decree of declaration of title and possession. 3. Defendant filed his written statement and set up a plea that he has not encroached upon plaintiff''s land, rather in possession of his own land bearing new Khasra No. 6401 area 1,100 sq. ft. which he purchased by registered sale deed dated 13/05/1999 (Ex. D/1), as such, plaintiff''s suit deserves to be dismissed. 4. During the course of the trial, learned trial Court appointed P.W. 2 Ghanshyam Singh Thakur as a local Commissioner under Order 26 Rule 9 of the CPC to find out the area, if any, encroached by the defendant. The local Commissioner conducted demarcation and submitted his report (Ex. P/7) along with the map (Ex. P/6) which was disputed by the defendant. 5. Learned trial Court, after appreciating the oral and documentary evidence on record, though held that plaintiff is the titleholder of land bearing Khasra No. 6442 plot No. 174 and 179 total area 2,700 sq. ft. but further held that she has failed to prove the encroachment made by the defendant on her land by way of raising construction on the said land and vide its judgment and decree dated 15/11/2003 dismissed the suit of the plaintiff. 6. ft. but further held that she has failed to prove the encroachment made by the defendant on her land by way of raising construction on the said land and vide its judgment and decree dated 15/11/2003 dismissed the suit of the plaintiff. 6. On appeal being preferred by the plaintiff, learned first appellate Court, vide its judgment and decree dated 31/07/2004, reversed the judgment and decree of the trial Court by relying upon Ex. P/6 and P/7 submitted by the local Commissioner holding that though demarcation has not been made on the basis of permanent boundary marks but it has been conducted in the presence of the parties and thus, the demarcation report (Ex. P/7) is not fabricated and therefore, the encroachment has been identified on the basis of sale deed and other documents, as such, the plaintiff is entitled for decree as claimed. 7. Assailing the judgment and decree passed by the first appellate Court, this second appeal under Section 100 of the CPC has been preferred by the appellant/defendant wherein the substantial question of law has been framed and is set out in the opening paragraph of this judgment. 8. Mr. V.G. Tamaskar, learned counsel appearing for the appellant/defendant would submit that defendant purchased the suit land by registered sale deed dated 13/05/1999 (Ex. D/1) and has been in possession thereof. Plaintiff has failed to establish the identity of the land and defendant has not encroached the land held by the plaintiff by raising construction therein and the first appellate Court is absolutely unjustified in relying upon Ex. P/7 i.e. demarcation report submitted by the local Commissioner as the demarcation is not made on the basis of permanent boundary marks as envisaged under Section 124 of the Chhattisgarh Land Revenue Code, 1959, therefore, the judgment and decree of the first appellate Court deserves to be set aside. 9. Mr. Praveen Dhurandhar, learned counsel appearing for the respondent/plaintiff would support the impugned judgment and decree and would submit that the first appellate Court is absolutely justified in relying upon the demarcation report (Ex. P/7) and thereby granting decree in favour of the plaintiff which is strictly in accordance with law, as such, the second appeal deserves to be dismissed. 10. I have heard learned counsel for the parties, considered their rival submissions made herein above and perused the records with utmost circumspection. 11. P/7) and thereby granting decree in favour of the plaintiff which is strictly in accordance with law, as such, the second appeal deserves to be dismissed. 10. I have heard learned counsel for the parties, considered their rival submissions made herein above and perused the records with utmost circumspection. 11. It is the case of the plaintiff that she is the owner of land bearing Khasra No. 6442 consisting of Plot No. 174 area 900 sq. ft. and plot No. 179 area 1800 sq. ft., in total 2700 sq. ft. out of which 1,100 sq. ft. of land that is a part of plot No. 179 (suit land) has been illegally encroached upon by the defendant by raising construction. Plaintiff claimed possession on the said suit land on the basis of the demarcation report (Ex. P/7) submitted by the local Commissioner P.W. 2 Ghanshyam Singh Thakur, with which the trial Court did not agree and after holding the plaintiff to be the owner of the abovestated land mentioned by her, dismissed the suit, but the first appellate Court despite having held that demarcation has not been conducted by the local Commissioner in accordance with the rules, yet proceeded to grant decree in favour of the plaintiff holding that conducting demarcation on the basis of permanent boundary marks was not possible thereof, but since demarcation was made in the presence of the parties on the basis of sale deed and other documents, it cannot be termed as fabricated. 12. The question arising for consideration is whether the first appellate Court is justified in relying upon Ex. P/7 which is the demarcation report made by the local Commissioner pursuant to the order passed by the trial Court ? 13. Section 124 of the Land Revenue Code provides for construction of boundary marks of villages and survey numbers or plot numbers which reads as under: 124. Construction of boundary marks of villages and survey numbers or plot numbers. -(i) Boundaries of all villages shall be fixed and demarcated by permanent boundary marks. (ii) The State Government may, in respect of any village by notification, order that the boundaries of all survey numbers or plot numbers shall also be fixed and demarcated by boundary marks. (iii) Such boundary marks shall, subject to the provisions hereinafter contained, be of such specification and shall be constructed and maintained in such manner as may be prescribed. (ii) The State Government may, in respect of any village by notification, order that the boundaries of all survey numbers or plot numbers shall also be fixed and demarcated by boundary marks. (iii) Such boundary marks shall, subject to the provisions hereinafter contained, be of such specification and shall be constructed and maintained in such manner as may be prescribed. (iv) Where the rules prescribed boundary marks of a specification different from that prevailing in any village, the new specification shall not be enforced in such village except upon application to a Tahsildar made by not less than half the number of holders of land in the village. When such application is made, the Tahsildar shall have new boundary marks constructed throughout the village and shall distribute the cost thereof proportionately among the holders of land in the village in accordance with rules made under this Code. The share of each holder shall be recoverable as an arrear of land revenue. (V) Every holder of land shall be responsible for the maintenance and repair of the permanent boundary and survey marks erected thereon. 14. Subsection (2) of Section 124 of the Code provides that the State Government may, in respect of any village by notification, order that the boundaries of all survey numbers or plot numbers shall be fixed and demarcated by boundary marks. Subsection (1) of Section 124 of the Code provides that boundaries of all villages shall be fixed and demarcated by permanent boundary marks. The aforesaid provisions are specific which provide two types of boundaries, one of village and another of all survey number of plot numbers in the village. The State has also framed rules regarding boundaries and boundary marks, survey marks. Rule 2 of the aforesaid Rules provides boundaries of all villages and boundaries of survey numbers or plot numbers in villages notified under subsection (2) of section 124 shall be demarcated by : (a). an unploughed strip 1.50 metre in width; or (b). a dhura .50 metre high, 1.50 metre wide at the base and 1.00 metre at the top; or (c). a strong fence or wall, or (d). boundary stones. 15. Rule 3 provides that near each corner of a survey number or plot number shall be erected two mounds or teelas pointing along the field boundaries. a dhura .50 metre high, 1.50 metre wide at the base and 1.00 metre at the top; or (c). a strong fence or wall, or (d). boundary stones. 15. Rule 3 provides that near each corner of a survey number or plot number shall be erected two mounds or teelas pointing along the field boundaries. The Rule 9 provides that between the 1 st November and the 15 th December each year, the patel and patwari shall jointly inspect every boundary or survey mark in each survey number or plot number in the village and shall prepare a statement in Form A of defective or missing marks, and shall give a written notice in form B to the holders concerned. Rule 13 provides how construction and maintenance of boundary marks in the village shall be regulated. 16. Aforesaid provisions specifically provide two types of boundary marks, one of village and another of each survey number in the village. The local Commissioner performing work of demarcation of the suit land ought to have firstly ascertain whether there are permanent marks as per section 124 of the Code or not and in absence of such boundary marks, he is required to ascertain the correct boundaries of nearby survey numbers and after asceratining the boundaries of such lands, three sides of disputed property, he has to ascertain the correct location of the disputed land and only thereafter, he has to submit his report before the Court. 17. The Madhya Pradesh High Court in the matter of Jagdish Prasad v. State of M.P. and Anr., 2009 (2) MPLJ 429 laid down the mode and manner in which demarcation has to be made by the Commissioner appointed by the Court keeping in view the provisions contained in Section 124 of the Code. 18. Likewise, in the matter of Ram Lal (supra), the Supreme Court has clearly indicated that if the report of the local Commissioner was suffering from an irregularity i.e. want of following the applicable instructions, the proper course for the High Court was either to issue a fresh commission or to remand the matter for reconsideration but the entire suit could not have been dismissed. 19. At this stage, it would be pertinent to notice the statement of P.W. 2 Ghanshyam Singh Thakur i.e. the local Commissioner appointed by the trial Court who has submitted his demarcation report Ex. P/7. 19. At this stage, it would be pertinent to notice the statement of P.W. 2 Ghanshyam Singh Thakur i.e. the local Commissioner appointed by the trial Court who has submitted his demarcation report Ex. P/7. Paragraphs 5 to 9 of his statement read as under : 20. A careful perusal of the aforesaid statement of the local Commissioner would clearly show that in paragraph 7 he has admitted the fact that he has not demarcated the land on the basis of any permanent boundary mark and for that he has assigned the reason that on account of large number of constructions made in that area, measurement by permanent boundary mark is not possible which he has ommitted to mention in the demarcation report (Ex. P/7). He has also admitted that he has not obtained the map of the earlier settlement. He has further expressed his inability to make demarcation as per the current map which has been filed as Ex. P/6 in paragraph 8 of his statement and has admitted that he has only made demarcation on the basis of sale deed and other documents. It further appears from the demarcation report that only on the basis of the layout and the registered sale deed filed by the plaintiff, demarcation report has been prepared by the local Commissioner which is not in accordance with the rules framed and notice hereinabove. The local Commissioner did not ascertain whether there is boundary marks as per Section 124 of the Land Revenue Code, either of the Village or of the survey number of the land owned by the plaintiff and the defendant. The demarcation report (Ex. P/7) filed only on the basis of sale deed and other documents cannot be considered valid in light of Section 124 of the Land Revenue Code. Thus, the first appellate Court has erred in relying upon Ex. P/7 and thereby, granting decree in favour of the plaintiff. 21. As a consequence and fallout of the aforesaid legal discussion, the judgment and decree of both the Courts below is hereby set aside and the matter is remitted to the trial Court with the following directions: (i) The trial Court shall ascertain the fact of encroachment by the defendant by issuing a fresh commission in this regard. 21. As a consequence and fallout of the aforesaid legal discussion, the judgment and decree of both the Courts below is hereby set aside and the matter is remitted to the trial Court with the following directions: (i) The trial Court shall ascertain the fact of encroachment by the defendant by issuing a fresh commission in this regard. (ii) The Commissioner so appointed by the trial Court shall ascertain whether there exists permanent marks of the village and in absence of such permanent marks he shall ascertain the boundaries of survey number of three sides around the disputed land and thereafter, he shall measure the location and area of the disputed land. After following aforesaid procedure, the Commissioner shall furnish his report to the trial Court. (iii) The Commissioner while demarcating the land shall look into the provisions of section 124 of the Code and the rules made thereunder. (iv) After receiving the Commissioner''s report, the trial Court shall proceed in the matter in accordance with law within four months from the date of receipt of copy of this judgment. 22. The second appeal is allowed to the extent indicated hereinabove leaving the parties to bear their own cost(s). 23. A decree be drawn up accordingly.