JUDGMENT : (EASWARAN S., J.) The appellants herein are the defendants in O.S. No.336 of 2012 on the files of the Additional Munsiff Court, Kannur and the appellants in A.S. No.59 of 2014 on the files of the Sub Court, Kannur. 2. The brief facts necessary for disposal of this appeal are as follows: The respondents herein, who are the plaintiffs, filed O.S. No.336 of 2012 for a prohibitory and mandatory injunction against the appellants. The plaint schedule property, according to the plaintiffs, belongs to Sri. T.K. Vijayan, who is the husband of the 1 st plaintiff and father of 2 nd plaintiff. The aforesaid Sri.T.K. Vijayan acquired the plaint schedule property as two plots, i.e., 24 cents and 10.5 cents and the property is lying as a single plot. The property having the extent of 24 cents was owned by him as per partition deed No.2620/1980 of SRO Kannur and the property having the extent of 10.5 cents was owned by him as per partition deed No.1451/1986 of SRO, Kannur. The compound wall was constructed within the plaint schedule property by Sri.T.K. Vijayan and the defendants (appellants herein) have no right over the plaint schedule property or the compound wall. The defendants purchased the property from one Yasoda’s share in partition deed No.2620 of 1980 out of which Sri. T.K. Vijayan also derived right, title and interest. On 3.7.2012, the defendants trespassed into the property and demolished the compound wall constructed of laterite stones on the eastern side of the plaint schedule property adjoining the defendant’s property. The compound wall, which was 1‰ meters height, was demolished up to a length of 9 meters. Therefore, the Suit was filed seeking a permanent prohibitory injunction restraining the defendants and their men from trespassing into the plaint schedule property and removing the iron gate and pillar in the plaint schedule property. A mandatory injunction was also sought to reconstruct the compound wall on the eastern side of the property adjoining the defendants property at the height of 1‰ meters and length of 9 meters using laterite stones. The defendants appeared and contested the case. A mandatory injunction was also sought to reconstruct the compound wall on the eastern side of the property adjoining the defendants property at the height of 1‰ meters and length of 9 meters using laterite stones. The defendants appeared and contested the case. It was the specific case of the 1 st defendant that the 22 cents of land in R.S. No.47/7 of Elayavoor Amsom Chovva Desom and undivided half right in 2.5 cents of property in the same survey number which is situated on the western and southern side of 22 cents of property was given to them by way of document No.4073 of 2008 of SRO Kannur. The property of the 2 nd defendant is shown as two items in the schedule of the documents. The first item is 22 cents of property, and the second item is 2.5 cents, of which the 2 nd defendant has the undivided half right. It was contended that the 2.5 cents of property is used as a way for ingress and egress by the 2 nd defendant as well as the deceased T.K. Vijayan. The compound wall lying on the northern and eastern side of 2.5 cents of property where the 2 nd defendant has an undivided half right was constructed by the predecessors of the 2 nd defendant, and the said compound wall is situated in the property of the 2 nd defendant. The gate over which the plaintiffs seek mandatory injunction is lying on the property of the defendants and that it always remains closed. On 3.6.2012, when the 2 nd defendant visited the property, he realised that the plaintiffs trespassed into the property on the southern side and constructed a compound wall. On behalf of the plaintiffs Exts.A1 to A5 documents were produced and Exts.B1 and B2 were marked on the side of the defendants/appellants. The ex- parte Advocate Commissioner was taken out whose report and plan were marked as Exts.C1 and C2. PW1 and PW2 were examined on the side of the plaintiffs and DW1 was examined on the side of the defendants. On the basis of the aforesaid documents, the Trial Court framed the following issues: 1. Are the plaintiffs in possession of plaint schedule property? 2. Did the defendants demolish compound wall on the eastern side of plaint schedule property? 3. Are the plaintiffs entitled for a decree of prohibitory injunction? 4. On the basis of the aforesaid documents, the Trial Court framed the following issues: 1. Are the plaintiffs in possession of plaint schedule property? 2. Did the defendants demolish compound wall on the eastern side of plaint schedule property? 3. Are the plaintiffs entitled for a decree of prohibitory injunction? 4. Are the plaintiffs entitled for a decree of mandatory injunction? 5. Are the plaintiffs entitled for the damages as claimed? 6. Reliefs and costs? 3. On appreciation of the evidence, the trial court decreed the suit and granted a decree of permanent prohibitory injunction restraining the defendants and their men from trespassing into the plaint schedule property and removing the iron gate and pillar in the plaint schedule property. The 2 nd prayer for mandatory injunction for reconstruction of compound wall was denied. Aggrieved by the judgment and decree, the defendants preferred AS No.59 of 2014. 4. During the pendency of the appeal, the appellants preferred I.A. No.1608 of 2014 for the appointment of an Advocate Commissioner. The first appellate court allowed the application, and an Advocate Commissioner was appointed. Consequent to the said order, the Advocate Commissioner inspected the property on 3.6.2017 , 15.6.2017 and 11.7.2017 with the assistance of a retired surveyor and filed a report before the first appellate authority on 30.6.2017. Immediately after the filing of the report, the appellants preferred I.A. No.922 of 2017 on 13.10.2017, seeking a direction to mark the aforesaid report and plan as Exts.C3 and C4. The first appellate court, however, for best reasons did not pass any orders in I.A. No.922 of 2017 and proceeded with the consideration of appeal on merits and by judgment dated 31.10.2018 dismissed the appeal. Simultaneously on the very same day, the application, I.A. No.922 of 2017 was also dismissed and thus the defendants/appellants are before this Court in the present appeal. 5. Heard Sri. V.R.K. Kaimal, the learned counsel appearing for the appellants and Sri. Madhavan Unni, representing Sri. V.A. Satheesh, the learned counsel appearing for the plaintiffs/respondents. 6. The learned counsel Sri.V.R.K Kaimal submitted that the first appellant court committed gross illegality by not allowing IA No.922 of 2017 filed for marking the report of the Advocate commissioner. 5. Heard Sri. V.R.K. Kaimal, the learned counsel appearing for the appellants and Sri. Madhavan Unni, representing Sri. V.A. Satheesh, the learned counsel appearing for the plaintiffs/respondents. 6. The learned counsel Sri.V.R.K Kaimal submitted that the first appellant court committed gross illegality by not allowing IA No.922 of 2017 filed for marking the report of the Advocate commissioner. Once the appellant was permitted to take out an Advocate Commissioner and the Advocate Commissioner inspected the property and submitted his report, sketch and plan it was incumbent upon the Court to mark the said documents in evidence and proceed accordingly. In not doing so, the first appellate court abdicated in its duties while considering the first appeal, and being the last court on facts, it was all the more reason why the first appellate court ought to have considered the marking of the report and plan submitted by the Advocate Commissioner. 7. On the other hand, Sri. Madhavan Unni, the learned counsel for the plaintiffs submitted that if any independent right devolves upon the appellants/defendants based on the said report, it is for them to work out their remedies in an independent suit and not to seek remand of the appeal. According to the learned counsel, both courts have concurrently found on facts regarding the entitlement of the plaintiffs for a permanent prohibitory injunction restraining the defendants from trespassing into the plaint schedule property and also for a mandatory injunction directing them to remove the gate. 8. I have considered the rival submissions raised across the Bar. 9. While admitting the appeal, this Court has framed the following questions of law: (i) Are the courts below justified in deciding the title to the plaint schedule property in a simple suit for injunction? (ii) Were the courts below justified in relying on Ext.C1 commission report, which was one filed by the commissioner without notice to the respondents? (iii) Did the lower appellate court go wrong in refusing to receive the report and plan of the commissioner as additional evidence in a case where the commission was issued by the said court itself? 10. On consideration of the rival submissions raised across the Bar, this Court finds considerable force in the submission of the learned counsel appearing for the appellants. 10. On consideration of the rival submissions raised across the Bar, this Court finds considerable force in the submission of the learned counsel appearing for the appellants. Since the first appellate court, had granted an opportunity to the appellants to take out the service of an Advocate Commissioner, and at the appellate stage, it was incumbent upon the appellate court to have marked his report, sketch, and plan submitted by him. The question as to whether the judgment of the trial court could be sustained in the light of the additional evidence adduced by the defendants is a different matter altogether. 11. Order XLI Rule 27 of the Code of Civil Procedure permits the appellants to adduce additional evidence during the appellate stage. Having permitted the appellants to adduce additional evidence in the form of taking out the service of an Advocate Commissioner for local inspection, the first appellate court failed in its duties in not allowing I.A. No.922 of 2017 and marking the documents produced by the Advocate Commissioner. 12. There is yet another reason as to why this Court should deprecate the course of action adopted by the appellate court. Had I.A No.922 of 2017 been taken up independently and a consequential order been passed, the appellants could have invoked the remedy under Article 227 of the Constitution of India. On the contrary, the first appellate court prolonged the consideration of I.A. No.922 of 2017 till the final judgment in the appeal was pronounced. In fact, from the records, it is revealed that the orders in I.A. No.922 of 2017 were passed on the same day when the final judgment in the appeal was rendered by dismissing the Suit. Therefore, it is clear the first appellate court failed in its duties and has prevented the appellants from adducing evidence which is impermissible under law. 13. Having said so, the next question is whether this Court can interfere with the orders passed in IA No.922 of 2017 in AS No.59 of 2014 since the appeal stands finally dismissed. It must be remembered that the order passed in the I.A. No.922 of 2017 cannot be questioned separately since the appeal itself is dismissed. In such a situation, the appellant is not remediless. It must be remembered that the order passed in the I.A. No.922 of 2017 cannot be questioned separately since the appeal itself is dismissed. In such a situation, the appellant is not remediless. Since the appellant has already challenged the final Judgment in A.S No. 59/2014, in view of Order XLIII Rule 1A of the Code of Civil Procedure, a separate challenge to the order in the interlocutory petition is not required. In such circumstances, this Court is not denuded of its powers to set aside the orders on such Interlocutory Application, which has merged into the final orders. 14. In the light of the above discussions, which has been done by this Court it becomes inevitable for this Court to answer these questions of law in favour of the appellants and find that the first appellate court miserably failed in its duties, by not allowing the application to receive the report and plan submitted by the Advocate Commissioner in evidence. Therefore, it becomes imperative for this Court to set aside the judgment and decree passed in AS No.59 of 2014 as well as the order dated 31.10.2018 in I.A. No.922 of 2017. 15. Resultantly, the appellants are entitled to succeed on the question of law raised. Accordingly answering the question of law in favour of the appellants, it is held that the first appellate court erred in not receiving the report of the Advocate Commissioner in evidence. Hence, the appeal stands allowed. The Judgment and decree dated 31-10-2018 in A.S. No.59 of 2014 is thus set aside. Simultaneously, the order dated 31.10.2018 in I.A. No.922 of 2017 in A.S. No.59 of 2014 will also stand set aside, and the above IA No.922 of 2017 in the A.S. No.59 of 2014 on the files of Sub Court Kannur, will stand allowed. In the light of the above findings, this court is of the considered view that the question of law 1 and 2 is unnecessary and hence not answered. 16. Consequently, the appeal will have to be considered afresh in accordance with the law on merits. Hence, this appeal is allowed by way of remand by restoring A.S No.59 of 2014 to the files of the Sub Court, Kannur. 16. Consequently, the appeal will have to be considered afresh in accordance with the law on merits. Hence, this appeal is allowed by way of remand by restoring A.S No.59 of 2014 to the files of the Sub Court, Kannur. Sub Court, Kannur is directed to mark the report and plan submitted by the Advocate Commissioner as Exts.C3 and C4 and proceed with the appeal in accordance with law and take a fresh decision as expeditiously as possible as per the priority. It is made clear that this Court has not expressed any point on the merits of the claim of the plaintiffs as well as the defendants/appellants. It is for the appellate court to proceed with the appeal in accordance with the law, untrammelled by any of the observations, if any, contained in the appeal. The parties shall appear before the Sub Court, Kannur on 18.6.2025. The Registry is directed to return the Trial Court Records to the Sub Court, Kannur, forthwith.