The report of a survey knowing Commissioner is a piece of evidence and not binding on the court. It is open to the parties to countermand the effect of the report by giving other evidence.

R. K. PATRA, J.

( 1 ) THIS is a petition filed under Article 227 of the Constitution seeking quashing of the judgment and order dated 21-1-1995 (Annexure-2) by which the learned Ist Additional District Judge, Cuttack in Civil Revision No. 68 of 1994 has set aside the order of the trial Court accepting the report of the survey knowing Commissioner.

( 2 ) FACTS leading to filing of this writ petition briefly are as follows : The petitioner as plaintiff has commenced R. S. No. 114 of 1990 in the Court of the Ist Munsif, Cuttack against opposite parties 2 and 3. The suit is for removal of the latrine and cock-pit constructed by the opposite parties 2 and 3 adjacent to the east of the compound wall of the petitioner in plot Nos. 2008 and 2012 of Hal khata Nos. 719 and 677 (corresponding to part plot Nos. 79 and 80 of Sabik khata No. 54) located at Bakharabad in Cuttack. It is the allegation of the petitioner that the said opposite parties 2 and 3 constructed the latrine by encroaching upon the compound wall of the petitioner. On 22-11-1990 the petitioner filed a petition praying for appointment of a Civil Court Commissioner to visit the disputed spot and answer on the points indicated in the petition. The opposite parties 2 and 3 filed their objection contending, inter alia, that the petition was not maintainable. The learned Munsif after hearing both the sides, by order dated 8-1-1991 appointed a Civil Court Commissioner by observing as follows :". . . . . . . From the pleadings of the parties it appears that the controversy is not only for the existence of the boundary wall but also regarding the encroachment. Both parties have claimed the boundary wall to be erected on their land. The defendants have averred that such construction are since about 50 years back. Therefore, in the circumstances of the case and to determine the real controversy I find it necessary that a civil Court Commissioner should be deputed for investigation. . . . . . "the Civil Court Commissioner who has been referred to as the survey knowing Commissioner submitted his report after making local investigation. The opposite parties 2 and 3 filed objection on the grounds, inter alia, that the Commissioner had not measured the disputed land, he had not prepared the local investigation map and case map, chain trangulation method adopted by him was not applicable at the spot and he had not taken any fixed point for measurement. After hearing both the sides, the learned Munsif by his order dated 4-4-1994 at Annexure-1 accepted the report of the Commissioner. The opposite parties 2 and 3 being aggrieved by the order accepting the report of the survey knowing Commissioner filed Civil Revision No. 68 of 1994 which came to be disposed of by the Ist Additional District Judge, Cuttack, by the impugned judgment and order dated 21-1-1995 at Annexure-2 which, as already indicated, is the subject-matter of challenge in his writ petition.

( 3 ) THE learned Additional District Judge in the impugned decision has observed that the trial Court by passing a 'strained order' accepted the report of the survey knowing Commissioner. By giving specific reasons in paragraph 5 of the impugned decision, the learned Additional District Judge has set aside the order accepting the Commissioner's report and directed the trial Court, if necessary, to depute another survey knowing Commissioner. We need not repeat those reasons because of the order we are going to pass in the matter.

( 4 ) WE may, however, note briefly the contentions raised by the counsel for the petitioner and opposite parties 2 and 3. Shri Mohanty for the petitioner contended that the report of the survey knowing Commissioner being a piece of evidence, aggrieved party can rebut it by adducing other evidence and as such, there is no question of rejecting such report. He also submitted that the learned Additional District Judge exceeded his jurisdiction in setting aside the order of the trial Court in exercise of revisiona