Dear experts,
My brother have filed an appeal in the district court. In which an district court has rejected my brother's application for appointment of expert as a court commissioner. Brief facts of the case are as follows,
In the trial court a suit was filed against us for mandatory injunction for demolition of embankment created long ago by our predecessors in my farm from west to east and south to north to restrain the flow of a water channel from east to west and north to south.
Plaintiff has made allegation that his adjoining land is got affected by these embankments and due to these embankments natural flow of water of the said water channel is changed and is now gathering in his (plaintiff's) land which has made his land infertile, this is false according to me.
In the said suit an application was filed by the plaintiff for appointment of court commissioner to check the factual position. Trial Court accordingly appointed an advocate court commissioner for checking the whether those embankment created are restraining the flow of water of the said water channel from east to west and north to south .
Advocate court commissioner accordingly submitted his report by stating that the water flow from north to south is restrained by embankment of south to north (?) and water flow from east to west is restrained by embankment of west to east (?).
I have not objected the said commissioner report in the said suit neither I cross examined the said commissioner. but in the first appeal my advocate filed above said application and it got rejected.
My query is,
1. If appeal is a continuation of a suit then whether a second application under O.26 R.9 CPC is maintainable ?
2. Can second commissioner be appointed at appellate stage?
We are planning to challenge this order of district court please suggest me suitable Option and stand.
