Appellate courts have the power to issue a commission for local inspection under Order 26, Rule 9, Civil Procedure Code, to ascertain the exact location and number of the disputed land, without resorting to the provisions of Order 41, Rule 27, Civil Procedure Code.

JUDGMENT :- This first appeal from order is directed against the order of the lower appellate court allowing an appeal and remanding the suit to the trial court with certain directions.

2. The brief facts are these. The plaintiffs-respondents sued for possession of a piece of land and mesne profits.

They alleged that the land in suit formed part of plot No. 50-B. The boundaries of the disputed land were given in the plaint. The defendants Nos. 1 to 3 were alleged to have taken illegal possession of the land in dispute which formerly had certain structures standing thereon, but after the structures fell down, it was in the shape of a khandhar. The said defendants started raising new constructions and thus arose the necessity for filing the suit. The defendants contested the suit and they denied that the land in dispute formed part of plot No. 50-B. According to them, it formed part of plot No. 51. They attacked the boundaries given in the plaint as vague and incorrect and contended that the land in dispute was part of their house and had been in their possession since long. Certain other pleas were also raised. The trial court framed the necessary issues and tried the suit. It held that the land in dispute had not been specifically demarcated, hence no finding about the title could be given. Issues Nos. 2 and 6 were left undecided on the ground that it was not possible to decide the said issues without deciding the question of title to the disputed land. The suit was. therefore, dismissed by the trial court. The plaintiffs felt aggrieved and filed an appeal in the lower appellate court. The latter passed the order of remand with certain directions. The trial court's decree and judgment were set aside and the suit was remanded for being re-registered at its original number. The trial court was directed to issue a fresh survey commission to get the number of the disputed land fixed. Certain other connected directions were given. The defendants felt aggrieved and came in appeal to this Court and in support thereof I have heard Sri V. K. S. Chaudhary, the learned Counsel for the defendant-appellants and in opposition, Sri N. P. Singh, the learned counsel for the plaintiff-respondents, has been heard.

3. Sri Chaudhary's main contentions are these. There was no justification for remanding the suit under Order 41, Rule 23, Civil Procedure Code. He further submitted that the plaintiffs were given repeated opportunities to get a local inspection made by a commissioner to be appointed by the Court, but they failed to avail of the said opportunity and therefore, the lower appellate court was not justified in allowing such an opportunity to be given to them. In this connection, the learned Counsel took me through the order sheet of the trial court. I do not propose to discuss the order sheet of various dates. It is sufficient to say that there was some laxity on the part of the plaintiffs in the matter of getting a local inspection made by the Commissioner appointed by the Court. However, the order sheet also discloses that the attitude of the defendants-appellants on occasions was not very co-operative and the writ of commission could not be executed on account of such non-cooperation from their side on the said occasions. Sri Chaudhary also submitted that the remand order should be set aside and the lower appellate court should be directed to decide the appeal itself on merits. He suggested that in case the plaintiffs wanted to bring on record additional evidence in the shape of a fresh commission to be taken out for the survey of the plot, then recourse was bound to be taken to the provisions of Order 41, Rule 27, Civil Procedure Code and he suggested that the matter should be left to the discretion of the lower appellate court to decide whether to entertain such additional evidence in case the same was sought to be brought on record by the plaintiff-respondents. He placed reliance on Prayag Ice and Oil Mills, Aligarh v. State of