“25. Point No. 2: In cases where there is a dispute as to encroachment, the fact whether there is such an encroachment or not cannot be determined in the absence of an agreed map, except by the appointment of a Commissioner under Order 26, Rule 9 of the Code of Civil Procedure. On 15-9-1966 the plaintiff, accordingly, applied for the issue of a commission to the Director of Land Records for a theodolite survey of the plaintiff's leasehold area. The Court by its memo dated 11-10-1966 enquired from the Director of Land Records whether he was prepared to undertake the work. The Director of Land Records by his memo dated 1-12-1966 signified his willingness. The Collector's memo dated 19-4-1969 shows that on the dates fixed for the purpose, neither the plaintiff nor any person authorised by him was present at the site. For reasons best known to the plaintiff, he did not press the application for commission vide order sheet dated 2-1-1970. The Court accordingly by its memo dated 10-1-1970 recalled the writ of commission issued to the Director of Land and his oral evidence. It is needless for us to stress that no finding as to the alleged encroachment can be reached on the oral evidence adduced by the plaintiff. The plaintiff has not examined any witness to prove that he had surveyed the area, and found on actual measurements that the pit EFGH marked in the plaint map, Ex. P-1, fell within his leasehold area.”
