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38. It is also important to note that the First Appellate Court committed an error in making an observation in paragraph 26 that during the cross- examination of CW1, he has clearly stated that there is a pathway in Sy.No.37 of Yogimalali village but in Ex.C2 he has referred as road instead of pathway. But in the evidence, he told that it is a pathway and width of pathway is 3 feet and width of road would be 10 to 12 feet. First Appellate Court fails to take note of the fact that same is mentioned with regard to formation of said pathway by the defendant and PW1 categorically stated in his evidence that the same has been made by the defendant but the Court Commissioner categorically shown the road which passes through Aklapura to Alasevillage and the same is not in respect of the same. But it is an observation of the First Appellate Court that the report of the commissioner is incomplete as he has not measured the road and hence, onlyrelying on commissioner report, it cannot be said that there is an encroachment in Sy.No.37 and same is against the material available on record. No dispute with regard to existence of road. When the Defendant is not claiming any right in respect of Sy.No.37, but he is making an attempt contending that he is in occupation of Sy.No.37 from his ancestors and also made an effort before the Land Tribunal by making an application for granting of tenancy in the year 1998, after filing of the suit and he was unsuccessful. Thus, the First Appellate Court committed an error in coming to the conclusion that it cannot be said that there is an encroachment in Sy.No.37 and the very claim of the defendant that he is in possession of Sy.No.37.