The main legal point established in the judgment is the importance of local investigation in cases involving the identification, location, or measurement of land or premises.

JUDGMENT :

A.K. Rath, J.

1. By this petition under Article 227 of the Constitution of India, challenge is made to the order dated 28.10.2006 passed by the learned Additional District Judge, Deogarh in R.F.A. No. 2 of 2005, whereby and whereunder, the application filed by the appellant under Order 26, Rule 9 C.P.C. for appointment of a Survey Knowing Commissioner has been rejected.

2. The petitioner as plaintiff instituted C.S. No. 26 of 2002 in the court of the learned Civil Judge (Sr. Division), Deogarh for declaration of right, title and interest and delivery of possession of the suit land impleading the opposite party as defendant. The suit was dismissed. Challenging the judgment and decree passed by the learned trial court, the petitioner filed R.F.A. No. 2 of 2005 in the court of the learned Additional District Judge, Deogarh. During pendency of the appeal, the petitioner filed an application under Order 26, Rule 9 C.P.C. for appointment of a Survey Knowing Commissioner. It is stated that pursuant to the order of the Tahasildar, Deograh in Identification Case No. 189 of 2002, the R.I., Kantapali measured and demarcated the land. Thereafter suit was filed basing on the report of the R.I., Kantapali, Ext.5. The R.I. was examined as P.W.4. The defendant-respondent in his written statement has neither denied nor disputed the contents of the demarcation of the suit land. But then no issue was framed with regard to the correctness of the identification of the suit land for which the plaintiff could not file an application under Order 26, Rule 9 C.P.C. The learned trial court disbelieved the testimony of P.W.4 and dismissed the suit. The respondent filed objection to the same. By order dated 28.10.2006, the learned appellate court rejected the application holding, inter-alia, that judgment of the lower court reveals that the identification report of P.W.4 was challenged by defendant. P.W.4 was subjected to extensive cross-examination. Further, the appellant intended to reagitate the matter in the appeal.

3. Heard Mr. S. Mishra on behalf of Mr. Ramakanta Mohapatra, learned Senior Advocate for the petitioner and Mr. D. Pattnaik on behalf of Mr. D.K. Mishra, learned Advocate for the opposite party.

4. The scope of the appellate court to appoint a Survey Knowing Commissioner has been succinctly stated in the case of Nakula Sahu Vs. Suresh Chandra Beherdolai and others, 16 (1) ILR, Cut 102 in paragraphs 7, 8 and 9 of the said report, which is quoted below:-

“7. Sub-Section 2 of Section 107 provides that the Appellate Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted therein. The words “as nearby as may be” occurring in the said sub-rule imply that the appellate Court shall be vested with the powers which are vested on the Courts of original side so far as may be necessary for the interest of justice. (Judhistir Subudhi Vs. Balaji Financial Fund and another, 1987 (1) OLR 589).

8. Dealing with the powers of appellate Court to appoint Survey Knowing Commissioner, a Division Bench of this Court in the case of Bishnu Charan Sahu Vs. Paramananda Sahu and others, 1994 (1) OLR 205, in paragraph-6 of the report held as follows:-

“6. A survey-knowing commissioner is deputed for local investigation for the purpose of elucidating the question as to whether the disputed land appertains to a particular survey plot or plots. His report is evidence in the case and forms part of the record. Such evidence is usually collected during trial of a suit. In a given case if such evidence was essential but has not been led during trial of the suit, and it is sought to be led in appeal, it would be by way of additional evidence. As to when either party to an appeal is entitled to produce additional evidence, the relevant provision is Order 41, Rule 27 of the Code. Under Clause 1(b) of the said rule the appellate Court has po