JUDGMENT : This is an appeal preferred under Section 96 CPC against the decree and judgment in O.S.No.58 of 1997 dated 20.04.2005 on the file of the Court of learned Additional Senior Civil Judge (FTC), Kovvur, West Godavari District, whereby the suit was dismissed. 2. The plaintiff is the appellant. The defendants are the respondents. This appeal against respondent No.4 was dismissed for default as per order dated 28.12.2011. 3. The appellant is the owner of an extent of Ac.6.56 cents in R.S.No.354 of Pochavaram village, West Godavari District. He is an agriculturist. He has been in possession and enjoyment of the aforestated land. To the west of this entire extent of Ac.6.56 cents, a canal locally known as ‘Kovvada Kaluva’ (the canal ‘for short’) runs all along. Excavation of this canal from Km.15.60 to 55.50 was taken up by the Government purportedly under ‘Janmabhoomi programme’ of May 1995. As a part of this programme, this canal was being deepened and also widened. It is stated to be up to 18 feet deep and 70 feet wide for free flow of water, stated to be mostly in the existing course, streamlining the same. 4. The appellant has stated in the plaint that in the course of such excavation of the canal, the fourth respondent, who was the contractor employed for this purpose, in the course of executing the work under the supervision of respondents 2 and 3, annexed a part of his land, which is Ac.1.56 cents (the suit land, for short) as set out in the plaint schedule. The appellant also averred in the plaint that peg marking was given for the above purpose, which he came to know just a day prior to filing the suit and when the workers of the fourth respondent were engaged for such activity. He further alleged that in spite of his protest, neither the respondents nor the workers of the fourth respondent stopped the work. On account of this illegal annexation of the suit land, 16 mango trees, 1 cashew nut tree, 2 lemon trees, 2 sapota trees and 1 jack fruit tree in this part of the land were up-rooted, causing irreparable loss and damage. According to the averments in the plaint, though the loss sustained by him in this respect is more than Rs.10.00 lakhs, he limited the claim only to Rs.5.00 lakhs. 5. According to the averments in the plaint, though the loss sustained by him in this respect is more than Rs.10.00 lakhs, he limited the claim only to Rs.5.00 lakhs. 5. Thus setting out in the plaint, the appellant requested to grant a decree for Rs.5.00 lakhs towards damages suffered by him on account of the alleged illegal acts of the respondents and for costs. 6. Resisting the claim of the plaintiff, the second respondent filed a written statement. While denying the averments in the plaint, it is stated in the written statement that the canal was excavated mostly in the existing course and in the drain poramboke streamlining the same. Annexure of the suit land is denied, while stating that some part of excavated earth could have been deposited due to spill over, on the bank due to operation of the machinery. It is denied that there was uprooting of as many trees stated in the plaint while stating that there were one cashew nut tree, one lemon tree, one sapota tree and one jack fruit tree only in the drain poramboke, fruits of which the appellant was enjoying, though the trees were in the Government poramboke land. It is further stated that there were two mango trees, which are available even now on the ground, on the existing left bank of this canal in the drain poramboke and that the appellant had also installed an irrigation pump in a part of drain poramboke, for drawal of water to his land. It is specifically averred in the written statement that the appellant anticipated in advance and had removed the existing trees along with 14 babool trees, cutting them down wilfully without knowledge of the Government and had taken them away even before the machinery arrived for excavation, for which he is liable to pay the damages to the Government. Denying the claim of the plaintiff that on account of excavation of the canal, its western tank required stone revetment, it is also stated that the fourth respondent was not the contractor for this work and who was organizing villagers for ‘shramadan’ through habitation committees of various villages. It is further averred that notice under Section 80 CPC was not issued before institution of the suit. Thus, mainly stating, the second respondent requested to dismiss the suit with exemplary costs under Section 35-A CPC. 7. It is further averred that notice under Section 80 CPC was not issued before institution of the suit. Thus, mainly stating, the second respondent requested to dismiss the suit with exemplary costs under Section 35-A CPC. 7. Basing on the above pleadings, the trial Court settled the following issues for trial: Whether the plaintiff is entitled to damages as claimed for? Whether suit is not maintainable for non-compliance of Section 80 CPC notice? Whether D1 to D4 are entitled to exemplary costs under Section 35-A CPC? To what relief? 8. At the trial, the appellant examined himself as P.W.1 and P.W.2 and P.W.3 being the neighbouring land owners, while relying on Ex.A1 and Ex.A2. P.W.4 is Advocate Commissioner examined by the appellant, through whom Ex.C1 was exhibited. D.W.1 was examined on behalf of the respondents and no documents were marked on their behalf. 9. On the material and considering the evidence let in by the parties, learned trial Judge held that the appellant miserably failed to prove his claim without discharging heavy burden placed on him. It was further observed that a notice under Section 80 CPC was not issued before institution of the suit, though the appellant had opportunity. Thus observing on material issues 1 and 2, it was held that the appellant was not entitled for the suit claim and also that the respondents did not make themselves entitled for exemplary costs under Section 35-A CPC. Thus observing and recording findings, the suit was ultimately dismissed and without costs. 10. Sri Venkateswara Rao Gudapati, learned counsel for the appellant and learned Government Pleader for Appeals submitted their respective arguments in this appeal. 11. Now, the following points arise for determination: 1. Whether the appellant established that the suit land consisting of the fruit bearing trees as described in the plaint, was annexed in the course of excavation of the canal causing damage to it? 2. Whether the appellant is entitled for damages as claimed against the respondents? 3. To what relief? 12. POINT No.1: The burden is on the appellant to prove that the suit land to an extent of Ac.1.56 cents out of Ac.6.56 cents belonging to him in R.S.No.354 of Pochavaram village was annexed and was damaged by uprooting the fruit bearing trees stated in the plaint in the course of excavation for the purpose of widening and deepening the canal. Cogent, convincing and acceptable evidence is required to prove such fact. 13. Though it is an admitted and proved fact that the appellant owned Ac.6.56 cents in R.S.No.354 of Pochavaram village, to the extreme west of which the canal has its course, it is for the appellant to prove at the trial and to establish that an extent of Ac.1.56 cents was affected, in the process of excavation. 14. For this purpose, it is reasonable to expect that there should be specific location of the land so suffered and damaged. Undisputedly, no survey was taken out of this land prior to the institution of the suit, which fact the appellant as P.W.1 categorically admitted in cross-examination. 15. An attempt was made at the trial to rely on the report of the learned Commissioner in Ex.C1 as well as his testimony as P.W.4 in this regard, to prove the nature and extent of the damage allegedly suffered by the appellant. It was an ex parte commission taken out and on the very next day of the institution of the suit, learned Commissioner had chosen to visit the suit land. His report in Ex.C1 explained the difficulty he faced in serving notices on the respondents and who apparently avoided receipt of such notices. Therefore, it cannot be stated that no notice, as such, was taken out to the respondents before executing the warrant by learned Commissioner. 16. The contents of Ex.C1 of which P.W.4 vouched at the trial suggested that the damaged extent out of the land belonging to the appellant is only Ac.0.75 cents. His observations reflect that this extent of Ac.0.75 cents was completely covered with huge mounds and heaps of earth excavated from canal, on account of use of machinery or land excavators. Thus, if the report of the learned Commissioner is accepted, it did not make out that an extent of Ac.1.56 cents as described in the plaint schedule was the damaged land. 17. Even otherwise, as rightly contended by learned Government Pleader for appeals, this report is difficult to accept. Learned Commissioner apparently had strained himself to measure the land, purportedly locating survey stones. He relied on the photocopy of FMB of the land in RS No.354, which according to him, was furnished on behalf of the appellant, at the time of execution of the warrant. Learned Commissioner apparently had strained himself to measure the land, purportedly locating survey stones. He relied on the photocopy of FMB of the land in RS No.354, which according to him, was furnished on behalf of the appellant, at the time of execution of the warrant. It is manifest that he did not have any assistance of a qualified surveyor or Government surveyor in the process nor he had sought such an assistance obviously through the process of Court. Yet he had chosen to measure the land and arrived at the total extent as stated above of Ac.0.75 cents, that suffered damage on account of activity of the respondents in widening the canal. 18. However, in cross-examination for the respondents, he stated that point ‘M’, where he purportedly found a survey stone, was not verified as to its exact location and if it was at the correct place or not. He further admitted in cross-examination that if survey stone shown at point ‘M’ was not in correct place, the entire survey would go wrong. These statements are sufficient to make out that the entire exercise by P.W.4, measuring the land and locating the extent of Ac.0.75 cents, was not on sound lines. Obviously, it was faulty. 19. Though according to the appellant, there were several fruit bearing trees, which he described in the plaint being 16 mango trees, one cashew nut tree, two lemon trees, one sapota tree and one jack fruit tree were there in the land, which were fruit bearing and were providing assured income every year, either in Ex.C1 or in his testimony as P.W.4, learned Commissioner did not give out such details of existence of these trees. On the other hand, in cross-examination he stated that there were some uprooted trees on the canal bund. Though he found trunks of some of the trees, in this extent of Ac.0.75 cents, their mere presence cannot make out or indicate that they are the left over trunk of the trees mentioned in the plaint. 20. One important circumstance that makes Ex.C1 as well as testimony of P.W.4 to reject this case is his failure to give out location of two mango trees as well as an irrigation pump set on the western boundary of the land belonging to the appellant. 20. One important circumstance that makes Ex.C1 as well as testimony of P.W.4 to reject this case is his failure to give out location of two mango trees as well as an irrigation pump set on the western boundary of the land belonging to the appellant. The appellant as P.W.1 deposed that there are two mango trees in this land on the western part of his land, while admitting location of an irrigation pump set installed by him on the bank of the canal. 21. When the purpose of taking out commission was not only to measure the land in dispute but also to localise, noting physical features including damage caused to the fruit bearing trees as well as estimate total damage suffered by the appellant, failure to observe the above features itself makes the version of P.W.4 including in Ex.C1, a suspect. Even as seen from Ex.C1 whatever value he had suggested towards loss suffered as claimed by the appellant on account of alleged damage to his land, was based on information provided by the appellant and neighbouring land owners as well as his personal knowledge. It cannot as such be relied on. Thus, the main plank on which the claim of the appellant rests in this case, shall be rejected. 22. As rightly observed in the judgment under appeal, the appellant did not choose to produce any records like cultivation accounts (adangals) to prove and establish the fact that there were such fruit bearing trees in the suit land. The version of respondents is that there is a canal poramboke in between the land of the appellant and the canal proper, which in fact was encroached by the appellant. Evidence of P.W.1, viz., the appellant itself reflected that the canal is running to the west of the mango trees by the side of the pump set. There cannot be any doubt that a canal of such dimensions did have banks on either side. Therefore, the western bank of the canal, necessarily be the one------where the pump set and these mango trees, are located. P.W.1 also admitted that he has been enjoying userufts from these trees. 23. In such an event, as already stated, if the appellant had taken out survey of the extent owned by him to the west of the canal, it would have offered best evidence. P.W.1 also admitted that he has been enjoying userufts from these trees. 23. In such an event, as already stated, if the appellant had taken out survey of the extent owned by him to the west of the canal, it would have offered best evidence. Reasons are not known why such an effort was not made by the appellant. 24. The contention of the respondents is that before undertaking excavation, the area of the canal was surveyed through Mandal Surveyor and one Sri D.V.Subba Raju, was the surveyor, who undertook such an exercise and had fixed the peg marks. This version of the respondent finds support from the testimony of P.W.2. He claimed that he has a land about Ac.6.00 cents away from the suit land. He stated that at the time of excavation of the canal, it was surveyed and marking was also done. He further stated that three or four days after giving such marking, excavation of canal was taken out. 25. Thus, the testimony of P.W.2, is proving that well prior to carrying out this task of excavation of the canal, there was survey and marking was done. This version cuts out the claim of the appellant, who stated that a day prior to filing the suit, peg marking was given and pegs were fixed annexing the land belonging to him. As rightly deposed by D.W.2 in the process of excavation of the canal, when machines were used, there is a possibility of the earth so excavated getting deposited as spill over on the land of the appellant, if any. Such an instance certainly cannot give raise to claim damages by the appellant. 26. Evidence of P.W.3 is not of much assistance to the appellant. He also admitted in cross-examination that there was survey of canal before widening, offering support to the version of P.W.2 and contra to the version of the appellant. P.W.3 also suffered loss of land though stated to be a small bit on account of this excavation and he did not choose to file any suit claiming damages. 27. In the absence of any proof that there were fruit bearing trees in the land allegedly affected as claimed by the appellant and the extent of land, which actually suffered damage in the process, the claim so set out by the appellant could not have been accepted by the trial Court. 27. In the absence of any proof that there were fruit bearing trees in the land allegedly affected as claimed by the appellant and the extent of land, which actually suffered damage in the process, the claim so set out by the appellant could not have been accepted by the trial Court. Rightly, it was rejected for want of appropriate proof. 28. Learned counsel for the appellant contended that the trial Court should have re-entrusted the warrant of commission in as much as notice was not served on the respondents before execution and when the report of the commissioner has crucial bearing, it is necessary that an opportunity be given to the appellant, to have the warrant re-entrusted to execute the same by the learned commissioner after issuing notice to the respondents. Thus contending, it is requested that the matter be remanded to the trial Court for fresh consideration. 29. Learned Government Pleader for appeals opposed this request mainly contending that there is absolutely no material to support the version of the appellant and that sufficient opportunity was given to the appellant to lead necessary evidence during the course of trial. 30. Findings have been recorded holding that there was a serious attempt by the learned Commissioner to serve notices on the respondents, who apparently had avoided for the reasons best known to receive notices from the learned Commissioner. The report of the learned Commissioner in Ex.C1 as well as his testimony are also considered. When they are not inspiring confidence as such and when the whole process of executing the warrant of commission is held to be faulty, it is not necessary that the matter be remanded for fresh consideration to trial Court. It is not the case, where the trial Court did not consider those facts, which are relevant and which are very much available on record to invite a fresh determination there on nor there is any question, which requires a re-consideration by the trial Court of the entire matter, in the interests of justice. The respondents, in fact should raise this contention, if at all they suffered any prejudice for want of service of notice of commission. It is not an objection raised by learned Government Pleader in this appeal. The appellant cannot take advantage on this score and to seek remand of the matter to the trial Court. 31. The respondents, in fact should raise this contention, if at all they suffered any prejudice for want of service of notice of commission. It is not an objection raised by learned Government Pleader in this appeal. The appellant cannot take advantage on this score and to seek remand of the matter to the trial Court. 31. Therefore, the contention so advanced by learned counsel for the appellant has to be rejected. Material on record is sufficient for disposal of this appeal. 32. Thus holding that the appellant failed to prove and establish that an extent of Ac.1.56 cents, viz., the suit land was affected in the course of excavation of the canal and also failed to establish that there were fruit bearing trees, which were a source of regular annual income for him, this point is answered in favour of the respondents and against the appellant. 33. POINT No.2: In view of findings on point No.1, it is manifest that the appellant failed to make out his case for damages much less of Rs.5.00 lakhs on any count. As rightly observed by learned trial Judge, the appellant miserably failed to discharge his burden in the process and should necessarily suffer the consequences. Thus, this point is answered in favour of the respondents and against the appellant holding that the appellant is not entitled for damages as claimed. 34. POINT No.3: In view of the findings on points 1 and 2, this appeal should necessarily fail. Learned trial Judge considered issue No.2 relating to want of service of Section 80 CPC notice by the appellant on the respondents and held that there was complete breach of this mandatory provision. As seen from the plaint and testimony of the appellant as P.W.1, it is clear that notice under Section 80 CPC was dispensed with by an order of the trial Court. Apparently, the order so passed was not questioned by the respondents at any stage. Learned trial Judge could have avoided such observations and in fact should have held issue No.2 to the effect that notice under Section 80 CPC was dispensed with. However, learned trial Judge rightly held that this is not the case, where discretion should be exercised granting exemplary costs under Section 35-A CPC to the respondents. 35. Learned trial Judge could have avoided such observations and in fact should have held issue No.2 to the effect that notice under Section 80 CPC was dispensed with. However, learned trial Judge rightly held that this is not the case, where discretion should be exercised granting exemplary costs under Section 35-A CPC to the respondents. 35. Thus, a careful consideration of the judgment under appeal indicates that proper reasons have been assigned considering the matter in proper perspective and therefore, it did not require any interference in this appeal. 36. In the result, the appeal is dismissed and without costs. Consequently, the decree and judgment of the Court of learned Additional Senior Civil Judge (FTC) in O.S.No.58 of 1997 dated 20.04.2005 stand confirmed. Interim orders, if any, stand vacated. All pending petitions, stand closed.