10.The learned counsel appearing for the appellants/defendants 1 to 4 would submit that the first Appellate Court has failed to note that Exs.C.1 and C2, viz., Commissioner's report and plan, is only a supportive piece of evidence and the same cannot be a basis for deciding the dispute between the parties. The first Appellate Court has decreed the suit and granted a decree for declaration and recovery of possession based upon the Commissioner's report and plan, in which, the Advocate Commissioner recorded a finding that there is an encroachment by the appellants, which is against the spirit of Order 26 of the code of Civil Procedure. It is a settled proposition of law that an Advocate Commissioner cannot be appointed for collecting evidence and he cannot file a report giving a finding on the point involved in the suit, the approach of the first Appellate Court in granting a decree for declaration and recovery of possession by reversing the judgment of the trial Court may not be correct. When the trial Court found that the plaintiff is not entitled for the entire suit second schedule property and he is having only one third share, the approach of the first Appellate Court granting a decree of declaration in respect of the suit second schedule property, is without any evidence. From the evidence of P.W.2, it is very clear that when there is no pathway in the field, the decree of the first Appellate Court for declaration and for recovery of possession is against the evidence of record and the Judgment and Decree passed by the first Appellate Court are liable to be set aside.
