ORDER :

Akshaya Kumar Rath, J.

1. Aggrieved by and dissatisfied with the order dated 27-7-2004 passed by the learned Additional District Judge, Paralakhemundi in Title Appeal No. 8 of 2001, the instant petition is filed under Article 227 of the Constitution of India. By the said order, the learned trial Court allowed the application of the opposite party No. 1 filed under Order 41, Rule 27 read with Order 26 Rules 9 and 10, C.P.C. and appointed the Survey Knowing Commissioner. Opposite party No. 1 as plaintiff filed a suit for declaration of right, title, interest, possession over the suit land, eviction of defendant No. 1 and permanent injunction restraining the defendant No. 1 from interfering with the peaceful possession, in the court of the learned Civil Judge (Senior Division), Paralakhemundi, which is registered as T.S. No. 54 of 1999. The petitioner was defendant No. 1 in the suit. The suit was decreed. Challenging the judgment and decree dated 30-4-2001 and 18-6-2001 respectively passed by the trial Court, the plaintiff filed Title Appeal No. 8 of 2001 in the Court of the learned Additional District Judge, Parlakhemundi. During pendency of the appeal, an application under Order 41, Rule 27, C.P.C. read with Order 26, Rules 9 and 10, C.P.C. was filed by the appellant or appointment of Survey Knowing Commissioner. By order dated 27-7-2004, the learned lower appellate Court allowed the application.

2. Heard Mr. Rao, learned counsel for the petitioner and Mr. A.K. Tripathy, learned counsel for the opposite party No. 1.

3. The learned counsel for the petitioner submits that if the evidence on record is insufficient to arrive at a conclusion, then only power under Order 26, Rule 9 can be invoked. In the present case, finding of the learned trial Court is that there is no encroachment. The present move is only to nullify the judgment of the learned trial Court by collecting further evidence. Thus, the impugned order of the learned trial Court by collecting further evidence. Thus, the impugned order of the learned trial Court is liable to be quashed. The petitioner has filed the petition to patch up the lacuna.

4. Per contra, learned counsel for the opposite party No. 1 supports the impugned order.

5. Section 107 of C.P.C. deals with powers of the appellate Court. The same is quoted hereunder:-

"107. Powers of Appellate Court -- (1) Subject to such conditions and limitations as many be prescribed, an Appellate Court shall have power:-

(a) to determine a case finally;

(b) to remand a case;

(c) to frame issues and refer them for trial;

(d) to take additional evidence or to require such evidence to be taken.

(2) Subject as aforesaid, 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 Court on Courts of original jurisdiction in respect of suits instituted therein."

6. 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 "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 v. Balaji Financial Fund and another, 1987 (I) OLR 589).

7. 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 v. Paramananda Sahu and others, 1994 (I) OLR 205, in paragraphs 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