JUDGMENT Ajoy Kumar Mukherjee, J. - Two appeals arising out of the judgment and decree dated September 24, 2015 passed in two suits being Title Suit no. 1552 of 2004 and Title Suit 1529 of 2004 heard analogously concerning self same property and disposed of by this judgment. Title Suit No. 1522 of 2004 was originally filed by Smt. Maya Rani Dutta herein after called as Dutta's and Title Suit No.1529 of 2004 was filed originally by Ranjit Kumar Nandi hereinafter called as Nandi's. Both the suits were heard analogously and after trial Title Suit No. 1522/2004 filed by Dutta's was dismissed but Title Suit No. 1529 of 2004 filed by the Nandi's was decreed. 2. Being aggrieved by the judgment passed in Title Suit No. 1522 of 2004 Dutta's preferred an appeal being first appeal No. 93 of 2016 and also feeling aggrieved by the judgment passed in title Suit No. 1529 of 2004, the same Dutta's preferred first appeal No. 92 of 2016. 3. The issue involved in both suits and appeals are with regard to ownership of 3 feet wide passage in between the two premises i.e. premises No. 10 Chandra Sur Lane, Kolkata-700006 owned by Dutta's and premises No. 11, Chandra Sur Lane, Kolkata -700006 owned by Nandi's and said two adjacent house are not separated by any boundary wall. Dutta's asserted that the said 3 feet wide passage form part of premises No. 10 Chandra Sur Lane and belonging to the Appellants but Nandi's have wrongly shown and claimed said 3 feet passage and obtained a plan form Kolkata Municipal Corporation (KMC) for the purpose of raising construction. 4. The schedule of deed described as the property of Dutta's is measuring about 2 katas and 1 chitacks be the same a little more or less whereon or part whereof two storied building built up area measuring about 800 square feet lying situated at and being premises No. 10, Chandra Sur Lane, owned by Duttta's. Premises No. 11 Chandra Sur Lane is on the south of premises No. 10 but schedule of premises No. 11 does not specify the area of the land comprised in the said premises. During the pendency of Title Suit No. 1529 of 2004 Learned Trial Judge appointed an engineer commissioner for holding local investigation, in view of application filed by Dutta's under Order 26 Rule 9 for inspection of both the premises No. 10 and 11 in order to ascertain whether there is any encroachment of land by either of the parties. After making investigation commission, engineer commissioner filed his report on 14.11.2007. It appears from the said report that during investigation Nandi's refused to hand over any paper\ documents in respect of premises No. 11 and engineer commissioner could hold investigation commission in respect of premises No. 10 only and from the report and plan attached thereto, it appears that according to commissioner's report, 3 feet passage falls within the premises No. 10 Chandra Sur Lane owned by the Dutta's. Nandi's did not challenge the said report filed by investigation commissioner and investigation commissioner was examined and cross-examined by the Nandi's and said report was marked as exhibit. Subsequently when the matter came up before the Hon'ble High Court, by its order dated 5th December, 2018, a Single Bench was pleased to pass the following order:- 'The Commissioner appointed by the trial court is appointed afresh to undertake the exercise and to report on the basis of the observations hereinabove, indicating the northern ends, on both the eastern and western sides, of premises no. 11, Chandra Sur Lane. It will also be open to the commissioner to indicate any other appropriate method to assess the extent of premises no. 11 such that the rival claims to the passage immediately to the north of the building at premises no. 11 can be appropriately ascertained by the court'. High Court directed the same commissioner to make inspection of premises No. 11 as learned commissioner on earlier occasion could not inspect the premises No. 11. On the basis of said order the same commissioner conducted the commission work and submitted his report determining as under. '0.03 DETERMINATION OF AREA : Area of Pr. No. 11 inclusive of disputed passage works out= 1/5 (63'-8'+62'-6'+58'-11'+58'-7'+61'-2')X 1/4 (38'-10'+40'-0'+42'-0'+42'-10')=1/5 X 304'-10' X 1/4 X 163'-8' = 60.97' X 40.92' = 2495 sft. = 3 (K) - 7(ch.) - 20 (sft.) = 3.465 (K). Disputed passage Area = 61'-2' X 2'- 10' = (sft.) = 0 (K) -3 (Ch.) -38 (sft.) Area of Pr. No. 11 inclusive of disputed passage works out= 1/5 (63'-8'+62'-6'+58'-11'+58'-7'+61'-2')X 1/4 (38'-10'+40'-0'+42'-0'+42'-10')=1/5 X 304'-10' X 1/4 X 163'-8' = 60.97' X 40.92' = 2495 sft. = 3 (K) - 7(ch.) - 20 (sft.) = 3.465 (K). Disputed passage Area = 61'-2' X 2'- 10' = (sft.) = 0 (K) -3 (Ch.) -38 (sft.) Area of Pr. No. 11, exclusive of the said disputed passage works out= (3 (K) - 7(ch.) -20 (sft.) -(0 (K) - 3 (ch.) -38 (sft.) or 3 (K) - 3 (ch.) -27 (sft.) which is far far more than the respondents' deed area as described therein as 3 (K). This area is even more than the area as shown in the respondents' land plan i.e. as described as 3 (K) -1 (ch.) -37 (sft.) 0.04 CONCLUSION: 1) From the physical survey it becomes crustal clear that the respondents' embodied outline land and structure plan is not correct. 2) Further the plan of Pr. No. 11 on the northern side does not show anny passage at all. 3) Pr. No. 11 as per the survey holds more area of land exclusive of the said disputed passage'. 5. It is worthy to be mentioned in this context that Hon'ble High Court while passing the said order dated 05.12.2017 was pleased to observe that the Sketch Map appended to the title deed pertaining to the premises No. 11 shows the north south extent of premises No. 11 to be 38 feet at both eastern and western extremities and east west length to be 59 feet on both the northern and southern sides. The sketch map shows that premises No. 11 is rectangular plot and on query from the court it is submitted on behalf of the parties that to the immediate south premises no. 11 is premises No. 12 Chandra Sur Lane. Accordingly it was observed, if a distance of 38 feet immediately to the north of the premises No. 12 is ascertained, the northern extremity of premises No. 11 will be found and such exercise will be conducted both at the eastern side and western side particularly if the eastern and western extremities of premises No. 11 and 12 coincide. 6. Learned commissioner after conclusion of investigation in reply to aforesaid query of the court observed as follows:- 'OBSERVATIONS: At the time of physical inspection and survey on 13.12.2017, I observed that the pr. 6. Learned commissioner after conclusion of investigation in reply to aforesaid query of the court observed as follows:- 'OBSERVATIONS: At the time of physical inspection and survey on 13.12.2017, I observed that the pr. No. 11, Chandra Sur Lane, P.S. Girish Park, Kolkata-700006 falling under the Municipal Ward No. 26, Borough No. IV of Kolkata Municipal Corporation belonging to the defendants/respondents has undergone sea-change as I visualized last on 24.10.2007. Partly mud and partly brick-built erstwhile structures have been replaced with first and second storeyed newly built structures. Any way in compliance with the said Hon'ble Court's order, a sketch plan imbued with the joint physical outline measurements of the present structures contained therein and the configuration of the profile of the subject land containing the said structures reportedly belonging to the defendants/respondents as identified to me including the disputed passage land falling in between the Pr. No. 10 (Southern side Plaintiffs/Appellants)and northern side of Pr. No.11 (defendants/respondents) has been taken in presence of the parties and their agents as per their full satisfaction. (vide Annexure-(4)). The scaled outline plan of Pr. No. 11 is annexed herewith and marked as Annexure-(7) showing distinctly the positions of Pr. Nos. 12, 11 and 10 as well as the disputed open passage land in between Pr. Nos. 10 and 11 whose right of ownership is the answerable point of adjudication in the subject case. To my view this is the moot point of controversy which centres round in the instant cases. From the plan it is quite evident that the south to north frontage of Pr. No. 11 spanning from the start point of Pr. No. 12's extreme northern boundary line is 18'-6'+16'-7' or 35'-1' or 35.08 ft. upto the end of respondents structure line as shown in the plan (vide Annexture -(7). The said length inclusive of disputed passage works out (35' -1' +2'-10') or 37'-11' or 37.91 ft. The western rear side length running south to north is not uniform just like its east front side counter-part. It has certain ups and downs strands as shown in the plan. Any way by the additive summation of all horizontal lines, the total length thus works out inclusive disputed passage ( 5'-0'+ 12'-0' + 4'4' +6'8' +13'-10') or 42'-10' or 42.83'. It has certain ups and downs strands as shown in the plan. Any way by the additive summation of all horizontal lines, the total length thus works out inclusive disputed passage ( 5'-0'+ 12'-0' + 4'4' +6'8' +13'-10') or 42'-10' or 42.83'. Considering the uniform width of the said disputed passage as 2'-10', then the rear length on the western side exclusive of the disputed passage works out (42'-10' - 2'-10' ) or 40ft. The land figure thus emerges out from joint physical survey is a substantially irregular rectilineal tract of land whose rear end bulges out while the front end squeezes in as shown in the plan. Hence, the respondents physical surveyed plan mis- matches with the plan embodied in their deed of conveyance dated 07th day of February, 1981. The said plan, to my mind, is totally and absolutely wrong and it is not at all a rectangular plot as contemplated. (vide Annexure -(6)). The east to west line at the south end works out (49'-3' + 14'-5') or 63'-8' or 63.66 ft. The east to west line at the north end works out (57'-0' +4'-2') or 61'-2' or 61.16 ft. The east to west central length of lines at a point 8'-9' and 15'-5' and 18'-6' from the start point of Pr. No. 12 on the northern side area 62'-6' or 62.50 ft. and 55'-4'+3'-7' or 58.11' or 58.91ft. and 55'-0' + 3'-7' or 58.58' respectively as shown in the drawing (Vide Annexure (7)).' 7. In view of above the engineer commissioner has opined that premises No. 11 does not show any passage at all and premises No. 11 as per investigation commission holds more area of land even excluding disputed passage. The map annexed to engineer commissioner's report border in red ink outside portion border in Green ink is premises No. 11. Said report submitted by the investigation commissioner, also has not been challenged by the Nandi's. The deed of Nandi's and Dutta's are marked as exhibit and the deed of Nandi's contains Map attached to the conveyance. But Dutta's deed is not annexed by any plan. However, the plan annexed to the deed of Nandi's does not show any passage on the southern side. Be it mentioned that premises No. 10 owned by Dutta's situated in the northern side. But Dutta's deed is not annexed by any plan. However, the plan annexed to the deed of Nandi's does not show any passage on the southern side. Be it mentioned that premises No. 10 owned by Dutta's situated in the northern side. The area mentioned in the deed of Nandi's is 3 kata 1 chitack 37 square feet as per plan annexed to the deed. But it has been recited in the deed as 3 kata more or less'. 8. Mr. Tilak Kumar Bose, Senior Advocate appearing on behalf of the appellants has argued that if there is dispute in between the recital of the deed with that of plan annexed with deed then settled principle of law is that recital on the deed shall prevail. Dutta's purchase deed does not contain any plan however, the sale deed of Dutta's recited that area of premises No. 10 is 2 kata 1 chitacks. It is further submitted by Mr. Bose that sanctioned plan submitted by Nandi's in 2004 goes to show that on the northern side a passage is purportedly shown though no such passage is shown in the plan annexed to conveyance of Nandi's. It is further submitted that the area sanctioned in the building plan is 207.260 square meter which is equivalent to 2228.1295 square feet (3 kata =2160 square feet). Accordingly Mr. Bose submitted that balance 68.1295 square feet is equivalent to 1 chitacks 23 square feet and accordingly the land of premises No. 11 Chandra Sur Lane as per the sanctioned plan is 3 kata 1 chitacks 23 square feet which more or less matches with the area of land as per the deeds of conveyance of Nandi's as also attached plan. 9. In reply Mrs. Jhuma Sen on behalf of the respondents submits that the appellants purchased their land without any site plan and they have also not filed any sanctioned plan in respect of their house at 10, Chandra Sur Lane. The respondents duly obtained sanctioned plan from Kolkata Municipal Corporation and strictly in terms of sanctioned plan they started construction on or about 19.10.2004 but the appellants resisted them from raising construction claiming existence of 3 feet passage on the southern side of their premises No. 10. The respondents duly obtained sanctioned plan from Kolkata Municipal Corporation and strictly in terms of sanctioned plan they started construction on or about 19.10.2004 but the appellants resisted them from raising construction claiming existence of 3 feet passage on the southern side of their premises No. 10. But the said claim is not tenable in the eye of law as from the Dutta's deed, it is clear that on the south of the Dutta's house, 11 Chandra Sur Lane is the property of the respondents. Dutta's during their evidence admitted that they have no document to show that the passage in question is owned by Dutta's. Though it is mentioned in the deed of purchase by Dutta's that the piece and parcel of land measuring 2 kata 1 chitacks described in the first schedule and delineated in the map or plan thereto enclosed with red border but no such map or plan is infact annexed and enclosed with red border nor there is any mention of any passage or measurement of any such passage in the first schedule is found in said deed of conveyance. 10. Mrs. Jhuma Sen on behalf of the respondents further submitted that the appellants challenged the plan and prayed for cancellation of sanctioned plan under section 400 of the Kolkata Municipal Act. But after hearing of both side KMC refused to revoke the sanctioned plan and being aggrieved Appellants herein preferred appeal against said order dated 31.05.2005 but the appeal was also rejected by the Municipal Building Tribunal vide order dated 29.06.2005. Accordingly she submits that the appellants have miserably failed to demonstrate the existence of any 3 feet passage within their land nor they could produce any document in support of the same. 11. Mrs. Jhuma Sen, further submits on behalf of the respondents that petitioners case rests solely on the commissioners report but the commissioners report cannot be in the nature of pre-trial decree against respondents. Learned trial court rightly observed and decreed Nandi's suit with the observation that he did not find any existence of 3 feet wide passage in between premises of plaintiffs and defendants and he also did not find any existence of 3 feet passage in title deed of plaintiff as well as in the title deed of the defendant. It is further contended by Mrs. It is further contended by Mrs. Jhuma Sen that there is nothing to show that the sanction plan obtained by the Nandi's /respondents by adopting any fraudulent practice and so far as sanctioned plan is concerned, KMC is the ultimate authority to say about its legality and validity. Accordingly Nandi's have every right to raise construction in terms of plan duly sanctioned by the KMC. 12. In this context Mrs. Jhuma Sen relied upon the judgment reported in the (2015) SCC OnLine Bom 6296, Mina Devi Vs. Narmada Bai and Saral Jain and others Vs. Sanju Gangadhaar and others and Akriti Viapare Pvt. Ltd.Vs. Kolkata Municipal Corporation reported in (2016) SCC OnLine Cal 138 and Sarala Jain & others Vs. Sangu Gangadhar and others. 13. Referring Meena Devi (supra) Mrs. Sen argued where boundary dispute involves, it is to be decided on the basis of measurement plan or map drawn by Government official and not by private survey commissioner. Similarly referring paragraph 26 of Akriti Viapara (supra), it is contended that sanction of building plan is a matter within exclusive jurisdiction of Kolkata Municipal Corporation (KMC) and KMC is the supreme authority for granting or referring sanction of a building plan. 14. Mrs. Jhuma Sen further submitted that object of commission can never be to collect evidence and dispute between the parties over the property can only be settled by way of evidence adduced by the parties and after hearing the parties Commissioner can never be appointed to provide pre trial decree. Pointing commissioners report Mrs. Jhuma Sen submits that from the measurement taken by the commissioner it appears that 'From the plain it is quite evident that the south to north frontage of Pr. No. 11 spanning from the start point of Pr. No. 12's extreme northern boundary line is 18'-6' + 16'-7' or 35.08 ft up to the end of respondent's structure line as shown in the plan. The said length inclusive of disputed passage works out ( 35'-1' + 2'-10' ) or 37'-11' or 37.91ft.' 15. Accordingly commissioners report also suggests that the measurement from extreme south of 12 Chandra Sur Lane to extreme north of 10 Chandra Sur Lane is about 38 feet. The said length inclusive of disputed passage works out ( 35'-1' + 2'-10' ) or 37'-11' or 37.91ft.' 15. Accordingly commissioners report also suggests that the measurement from extreme south of 12 Chandra Sur Lane to extreme north of 10 Chandra Sur Lane is about 38 feet. However, she argued that the commissioner's alleged finding on disputed passage is in the nature of pre trial decree and should be ignored by the court and the measurement taken by the commissioner tallies with the measurement on the site map appended to the respondent's deed of conveyance. In this context she referred section 83 of the Evidence Act and contended that presumption of accuracy can only be drawn in favour of maps which satisfy the requirements prescribed by the first part of the section 83 of the Evidence Act and Trial Court can certainly raise presumption of accuracy and genuineness of such map in view of section 83 of the Evidence Act, if map is drawn by competent authority and not by a private commissioners appointed by a court, who is not competent government authority. 16. Having considered the rival contentions made by the parties it emerges that Nandi's property as per the purchase deed is more or less 3 kata and as per the plan annexed to the deed it is 3 kata 1 chitacks and 37 square feet and it is also clear from the plan annexed to the said deed that in the northern side of Nandi's property there is no passage but in the southern side, there is 4 feet wide passage. Learned advocate commissioner has clearly opined that the land figures emerges out of joint physical survey is a substantially irregular rectilineal tract of land whose rear end bulges out while the front end squizes in as shown in the plan and as such Nandi's physical surveyed plan mismatches with the plan embodied in their deed of conveyance dated 07.02.1991 and said plot of land owned by Nandi's is not at all a rectangular plot as contemplated in said plan. Accordingly as per the investigation commissioner area of premises No. 11 inclusive of disputed passage works out 3 kata 7 chitacks 20 square feet and if the disputed passage area measuring 173 square feet equivalent to 'o' (zero) kata 3 chitacks 38 square feet substracted then the area of premises No. 11 according to the investigation commission comes down to 3 kata 7 chitacks 20 square feet minus 'o' (Zero) kata 3 chitacks 38 square feet which is equivalent to 3 kata 3 chitacks 27 square feet which is far more than the area as shown in the respondents land plan as described as 3 kata 1 chitacks 37 square feet. 17. On the contrary it appears from the first report of the commissioner dated 13.11.2007 that the land area covered in connection with Dutta's land being premises no. 10 Chandra Sur Lane, the structural area and vacant portion comprising of 2 kata 1 chitacks 22 square feet which more or less tallying with the Dutta's area giving in the deed. Said area calculation made by the investigation commissioner in respect of premises no.10 may be reproduced below:- 'Built -up structural area based on G.F- Total structural area at G.F. including vacant C.Y, portion within it at G.F.- vacant portion is, 1/2 (22' 7' 21' 11 x 1/2 ( 58'-6 1/2 58'-7') -(17'- 8' X6 -4')= 1/2 (22.583+'21.958') x 1/2 (58.542'+58.583') -( 17.67, x 6,33')=22.27'x 58.56'-84 sqft. =(1304-112) sqft =1192 sqft. Total land Area = Av. Length x Av. Width - (1/2 (58'-6 1/2'+58'-7') + 1/2 (2'-5' + 2'-61/2) x 1/2 ( 22'7' + 21'-11 1/2' +2'.5')= (58.56' +2.48') x (22.27' + 2.42') = 61.04' x 24.69' = 1507.08 sft. =1507sqft. =2.093 (K) =2 (K) -1 (Ch) -22 (sft). Incidentally it will not be out of place to mention here that the land areas of the plaintiffs as well as structural areas as I have found out from the plaintiffs deed as well as the plan submitted to me are as under: Sl. No. description Land Area Structural Area A From Ded 2(k)-1 Ch 800sft. B From Building plan 2(K) -1 (Ch) -15 (Sft.) 1201sft 18. In view of above it is clear that as there was serious allegation of encroachment by one party against the other, leaned trial court and subsequently High Court appointed local investigation commissioner to ascertain the area of land owned by each of parties. B From Building plan 2(K) -1 (Ch) -15 (Sft.) 1201sft 18. In view of above it is clear that as there was serious allegation of encroachment by one party against the other, leaned trial court and subsequently High Court appointed local investigation commissioner to ascertain the area of land owned by each of parties. If there is a dispute with regard to encroachment or there is dispute that other side has wrongly occupied the land of the plaintiffs, in such circumstances the best evidence is the report that is submitted by the Commissioner based on local investigation. In this regard, reliance can be placed on Ponnusamy Pandaram v. The Salem Vaiyappamalai Jangamar Sangam, reported in 1984 SCC OnLine Mad 190 : AIR 1986 Mad 33 , at 115-16, wherein the Hon'ble Madras High Court dealing with a revision petition against an order declining to appoint a Commissioner for local investigation observed as follows: '8. Coming to the question as to whether, on the basis that the order passed by the Court below is a case decided, there is a warrant for interference within the meaning of S. 115 of the Code, I find that it is so. A controversy, as we could see from the pleadings, has arisen as to whether the constructions put up by the third defendant are within his land or whether they have encroached into the lands of the plaintiff. A local investigation is the best way to find out the position and the party, namely, the third defendant coveting to place the evidence before the court through local investigation by the Commissioner cannot be shut out of that right. A misconception has weighed in the mind of the Court below when it reasoned that there is no dispute about the ownership of S. No. 289/1 by the third defendant. That is not the point in issue. Shutting out the evidence which a party is entitled to place before Court to substantiate his case, definitely decides that ...' (emphasis supplied) 19. It is also to be mentioned that said investigation commissioner initially calculated the area covered by premises No. 10 and by subsequent report calculated area covered under premises No. 11. Said commissioner had also faced the cross-examination and the report submitted by the commissioner also marked as exhibit. It is also to be mentioned that said investigation commissioner initially calculated the area covered by premises No. 10 and by subsequent report calculated area covered under premises No. 11. Said commissioner had also faced the cross-examination and the report submitted by the commissioner also marked as exhibit. At no point of time during trial Nandi's challenged the said report nor said report has been cancelled before the trial court on the ground of its non acceptability. In the above backdrop and in the context of area dispute when advocate commissioner was appointed by court who submitted his report which marked as exhibit then it is not understandable why trial court has disbelieved it and not even discussed the effect and evidentiary value of the report in the judgment and had taken the sanctioned plan granted by the KMC as sacrocent. Investigation commissioner is the representative of the court and his report unless rejected by the court on the ground of its non admissibility or non-acceptability should be taken as documents as an out-come of investigation conducted by the court. The object of the local investigation under Order 26 Rule 9 is to obtain proof which from its peculiar nature can best be had from spot itself. Such evidence enables the court to properly and correctly understand and assess evidence on record and clarifies or explain any point which is left doubtful on the evidence on record. Obviously by the appointment of commissioner object is not to collect evidence but its object is to elucidate matter which report is local in character and which can be done only by local investigation at spot. 20. Furthermore, the appellants have demonstrated by drawing a comparison between the sanctioned plan by the K.M.C. submitted by the respondents and the site plan attached to the conveyance of the respondents that while the area mentioned in both of these documents are more or less same, however, in the site plan there is no indication of any passage while the sanctioned plan shows a passage. In our opinion, this divergence adds substance to the allegations brought by the Appellant that the sanctioned plan by the K.M.C. was obtained fraudulently and is wrongful and illegal. The deed of conveyance is evidence with regard to the facts and circumstances that existed at the time of the purchase of the said land by the predecessors of the respondents. In our opinion, this divergence adds substance to the allegations brought by the Appellant that the sanctioned plan by the K.M.C. was obtained fraudulently and is wrongful and illegal. The deed of conveyance is evidence with regard to the facts and circumstances that existed at the time of the purchase of the said land by the predecessors of the respondents. If at that point of time no passage is shown to be in existence then emergence of a passage subsequently in the sanctioned plan by the K.M.C. is clearly unconceivable. 21. In view of the admission by the D.W.1 as well as the findings of the Ld. Advocate Commissioner the existence of the passage between the Premises No. 10 and Premises No. 11 can be held to be fairly established. 22. With regard to the ownership over the disputed passage, it is to be mentioned at the cost of repetition that in the sketch map attached to the report of the Ld. Advocate Commissioner an area measuring 173 Sq. Ft. has been marked as 'disputed passage'. This disputed passage is shown to be situated on the northern extreme of the land of the defendants i.e., premises no. 11 next to which is the Premises No. 10 as it is an admitted fact that the land of the plaintiffs i.e., premises no. 10 is situated on the northern side of the land of the defendants i.e., premises no. 11. Under such circumstances, once the Ld. Advocate Commissioner arrives at the finding that the area of the premises no. 11 both inclusive and exclusive of the area covered by the disputed passage is larger than the area mentioned in the deed of conveyance or in the site plan attached thereto adduced by the defendants. It must be held that the disputed passage does not form part of the premises no. 11. 23. In fact, arriving at a finding that the disputed passage is a part and parcel of the premises no. 11 and is owned by the respondents/defendants shall lead to a position that effectively vests upon the defendants an ownership of such an area of land that is more than what was purchased by them. 11. 23. In fact, arriving at a finding that the disputed passage is a part and parcel of the premises no. 11 and is owned by the respondents/defendants shall lead to a position that effectively vests upon the defendants an ownership of such an area of land that is more than what was purchased by them. In this regard, it may be useful to refer to the decision of the Hon'ble Supreme Court in Saraswati v. S. Ganapathy, reported in (2001) 4 SCC 694 wherein the Court facing a similar factual conundrum held that: 'Thus, it is to be seen that it is the Appellants who are encroaching upon 350 Sq. ft. in Survey No. 7/229. The 1st Respondent has excess area to the extent of 12 Sq. ft. in Survey No. 7/232. The Commissioner has also found that the 1st Respondent has land to the extent of 21 sq. ft. over and above what he had purchased under his Sale Deed. Both the trial Court and the 1st Appellate Court had this factual position before them. One fails to understand the logic by which both these Court concluded that the encroachment was to the extent of 338 Sq. ft. Both these Courts ignored the fact that the encroachment, to the extent of 338 Sq. ft., could only be there provided the measurements and description given in the Sale Deed of the Appellants were correct. As set out above, those measurements and the description are entirely incorrect. The factual position was that the Appellants, who had only purchased Survey No. 7/232 was in possession not only of entire Survey No. 7/232 (less 12 Sq. ft.) but was in possession (without any right) of 350 Sq. ft in Survey No. 7/229 which was purchased by 1st Respondent. The Appellants having only purchased Survey No. 7/232 is not entitled to more than 2481 Sq. ft. The Appellants are now in possession of more than what was purchased by them. The Appellants were seeking to claim possession of property which they had never purchased under their Sale Deed. The High Court has rightly not allowed this.' 24. Once it is established that the disputed passage existing on the northern side of the premises no. 11 is not its part, and there being no boundary wall between premises no. The Appellants were seeking to claim possession of property which they had never purchased under their Sale Deed. The High Court has rightly not allowed this.' 24. Once it is established that the disputed passage existing on the northern side of the premises no. 11 is not its part, and there being no boundary wall between premises no. 10 and 11, the natural corollary to this is that such passage is a part and parcel of the land that is found contiguous to the northern boundary of the premises no. 11 which is the land owned by the appellants i.e., premises no. 10. This is also buttressed by the report of the commissioner dated 13.11.2007 that the land area covered in Premises No. 10 Chandra Sur Lane, the structural area and vacant portion comprising of 2 Cottah 1 Chitacks 22 Sq. Ft. more or less tallies with the plaintiff's area given in the plan, as already discussed hereinabove. 25. Observations made by Singly Bench of this Court as cited by the respondents, Akriti Vyapaar pvt. Ltd. (supra) is not applicable in the present case as said plan was sanctioned on the basis of wrong impression that there exists 3ft. Wide passage in the plan annexed with the deed submitted by the respondent and as such said sanctioned plan is inherently defective and as such cannot claim its supremacy. Furthermore the Meena Devi's case (Supra) Apex Court held in paragraph 6 that in case of boundary dispute, the court can be assisted effectively and properly by the competent surveyor who may draw a measurement plan in presence of parties to the suit so that extent of encroachment , if any, is brought to the notice of the court and it is always desirable that the suits involving boundary dispute are decided on the basis of measurement plan or map drawn to the scale by the competent government official deputed from the office of T.I.L.R. and D.I.L.R as the case may be. Ratio of aforesaid judgment does not suggest that if the measurement taken by nongovernment official in case of boundary dispute, it is not acceptable. In fact in the present case investigation commissioner had conducted commission work first under the direction of Trial Court and then for the second time under the direction of High Court and as such said case law is also not applicable in the present context. In fact in the present case investigation commissioner had conducted commission work first under the direction of Trial Court and then for the second time under the direction of High Court and as such said case law is also not applicable in the present context. Similarly Sarala Jain's (Supra) observation has got no application in the present case as in that case relief claimed in the plaint is only to confirm the boundaries, since the property was already demarcated twice and as such court held that appointment of advocate commissioner for the same purpose does not arise. Here the case is completely different, so courts rightly appointed investigation commissioner. 26. In view of above we are of the view that learned trial court erred in not considering the investigation commissioner's report in coming to its ultimate findings. As such the judgment and decree dated 24.09.2015 is hereby set aside. Title Suit No. 1529 of 2004 is dismissed and Title Suit No. 1522 of 2004 is decreed with a declaration that defendants in Title Suit No. 1522 of 2004 have no right or authority to raise any construction at premises No. 11 Chandra Sur Lane Kolkata-06 by encroaching 3 feet wide passage of premises No. 10 Chandra Sur Lane Kolkata-06 interms of any sanctioned plan and defendants of Title Suit No. 1522 of 2004 are also permanently restrained from raising any construction encroaching any portion of the premises of the plaintiff at 10 Chandra Sur Lane including the land i.e. 3 feet wide passage also by way of passing mandatory injunction Kolkata Municipal Corporation is directed to cancel and/or revoke the plan, so sanctioned by them in favour of respondents herein in connection with 11, Chandra Sur, Lane, Kolkata-6 allegedly approved by KMC on 19.10.2004 27. However there will be no order as to costs. The department is directed to draw up the decree as expeditiously as possible. Urgent photostat certified copy of this judgment, if applied for, be supplied to the parties upon compliance with all requisite formalities. I agree