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2.10 In the said proceedings, the plaintiff filed an application under Order 26 Rule 9 of the Civil Procedure Code, 1908, seeking appointment of Court Commissioner to fix up the boundaries of the suit Survey No.43/1 and to locate portion of the said survey number, which is covered under the sale deed dated 25.11.1977. It is seen from the records that the trial Court by its order dated 10.03.1989, has appointed Assistant Director of Land Records ('ADLR' for short), Hassan, as Court Commissioner and he was directed to conduct survey

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of land in Sy.No.43/1 as sought in the application filed by the plaintiff and give his report.

2.11 It has come on record that the Assistant Director of Land Records (ADLR), Hassan, has not conducted the spot inspection and he in turn had directed one P. Chikkamallaiah, retired Supervisor of Survey Department, who is examined as CW.1, to conduct spot inspection and submit his report. CW.1

- P. Chikkamallaiah has got marked: sketch prepared by him vide Ex.C2; report / reply to the memo of instructions submitted by the original defendant as per Ex.C1; spot mahazar as per Ex.C3 and copy of notice sent by him to the plaintiff and original defendant vide Ex.C4.

2.12 The trial Court on appreciation of the pleadings and evidence adduced by the parties, proceeded to answer issue Nos.1 to 3 in the negative against the plaintiff and issue No.4 as per the final order. Having regard to the fact that the survey was not conducted by the Assistant Director of Land Records, Hassan, in compliance with its order dated 10.03.1989, the trial Court declined to accept the report,

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sketch and spot mahazar submitted by CW.1 - P. Chikkamallaiah, retired Supervisor, who is said to have prepared the same on the basis of instructions issued by ADLR, Hassan. Accordingly, the trial Court by judgment and decree dated 16.02.2000, dismissed the said suit.

8. In that view of the matter, the question as to whether the suit schedule property marked by letters 'BHID' in the plaint sketch is portion of 01 gunta of kharab land in Sy. No.43/1 or whether it forms part of 02 guntas of cultivable land in the said survey number, which is in possession and enjoyment of the plaintiff (respondent herein), will have to be dealt with by the trial Court by affording opportunity to the parties to lead evidence in that regard.

9. The trial Court has rejected the prayer of the plaintiff for the relief of permanent injunction and while doing so, it has not accepted the Commissioner's report, which is prepared and produced by CW.1 - P. Chikkamallaiah, retired Supervisor of Survey department, contrary to the direction issued by the trial Court to the ADLR., Hassan, to conduct survey of the land in Sy. No.43/1 and submit his report. It is