JUDGMENT
A.K. Parichha, J.
1. The order of remand passed by learned Ad hoc Addl. District Judge, Fast Track Court, Champua in R.F.A. No. 2/29 of 2004-03 is under challenge in this appeal.
2. The present respondent as plaintiff filed Title Suit No. 9 of 1997 in the Court of Civil Judge (Sr. Division), Champua for declaration or her right title over the suit land and confirmation of possession or alternatively for recovery of possession of that land and also for issue of permanent injunction restraining the defendants from demolishing the house constructed over the suit land. The case of the plaintiff-respondent was that she purchased Ac.0.08 decimals of land from Plot No. 159 and Ac.0.01 decimal from Plot No. 160 of Khata No. 12/12/202 of village Champua from one Basanti Kumari Patnaik under registered sale deed No. 160/92 for consideration of Rs. 24,000/- on 17.2.1992 and came into the possession of that land, but when she tried to raise a compound wall and a house thereon the defendant -appellants created trouble over that land on 14. 12.1994. She claimed that there was a criminal proceeding under Section 144 Cr. P.C., but not paying any heed to the restraint order of the Sub-Divisional Magistrate, Champua, the defendants encroached into the suit land and constructed a kuchha house on an area of 20′ x 15′ described in Schedule ‘B’ of the plaint for which the plaintiff was constrained to file the suit seeking the reliefs noted above. The defendant-appellants denied the allegation of the plaint and pleaded inter alia that the lands described in Schedule ‘B’ of the plaint does not come within the purchased land of the plaintiff-respondent and that the house in question of the defendants is there on the Schedule ‘B’ land since more than 40 years being constructed by Basudeb Naik, the father-in-law of defendant No. 1 and the father of defendant No. 2. The defendants thus claimed that they have prescribed title over the Schedule ‘B’ land by adverse possession. They also challenged the maintainability of the suit on several grounds.
3. Learned trial Court framed as many as 7 issues and received evidence of the parties. On consideration of such evidence oral and documentary it dismissed the suit on contest. The unsuccessful plaintiff carried appeal against such judgment and decree vide the above said R.F.A. No. 2/29 of 2004-03. Learned first appellate Court after considering the evidence on record and the submissions of the learned Counsel for the parties, set aside the judgment and decree of the trial Court and remanded the suit for fresh disposal with the following observation:
For the aforesaid reasons I set aside the judgment dt. 10.4.2003 and decree dt. 23.4.2003 passed by Civil Judge (Sr. Divn.), Champua in T.S. No. 9/1997 and remand the matter to the trial Court for fresh disposal in accordance with law. The cost of the survey knowing commissioner shall be shared equally by the parties and thereafter further opportunity may be offered to both the parties for adducing further evidence and the matter should be disposed of in accordance with law as expeditiously as possible preferably within a period of six months from the date of receipt of L.C.R. The L.C.R. be sent back immediately. The parties are directed to appear before the trial Court on 1.11.2004.
The said order is under challenge in this appeal.
4. Mr. Mohanta, learned Counsel for the appellants submits that the order of remand recorded by learned first appellate Court is contrary to the provisions laid down under Order 41 Rule 23-A and Rule 25 of the C.P.C. as the impugned order is neither an open remand nor it contemplates any specific issue for adjudication by the trial. Court. He also contends that there was absolutely no necessity of directing the trial Court, to depute a survey knowing commissioner as the evidence on record are sufficient to adjudicate the dispute regarding identity and location of the suit Schedule ‘B’ land. Mr. Mohanta also raises strong objection to the observation noted by the first appellate Court in paragraph 10 of the impugned judgment.
5. Miss. Subha Laxmi Satpathy, learned Counsel appearing for the respondent on the other hand supports the impugned order and contends that deputation of survey knowing commissioner as directed by the first appellate Court would help in proper adjudication of the dispute between the parties. She, however, prays to direct the trial Court to allow the parties to lead further evidence on the report of the survey knowing Commissioner.
6. Order 41 Rule 23A, C.P.C. empowers an appellate Court to make an open remand directing the trial Court to decide the suit afresh. Rule 25, however, empowers the appellate Court to frame any additional issue if it finds that such additional issue is essential for adjudication of the suit and after framing such additional issue to accept evidence of the parties on such issue or direct the trial Court to record evidence of the parties on that issue and submit the evidence to the appellate Court for adjudication of the issue by the appellate Court.
7. In the present case the dispute was about the location and identity of Schedule ‘B’ land, while it was the case of the plaintiff-respondent that this land forms part of the land purchased by her from Basanti Kumari Patnaik under registered sale deed dated 17.2.1992, the case of the defendants was that this Schedule B land does not form part of the land purchased by the plaintiff, and that it is another piece of land on which they (defendants) have continuous possession for more than 40 years.
8. Whenever identity and location of a piece of land is under challenge no amount of evidence of common witnesses would be sufficient to decide the dispute effectively. In such situation, report of a survey knowing commissioner made after spot visit, demarcation and measurement is very helpful. So learned first appellate Court was reasonable in its observation that the dispute between the parties cannot be effectively adjudicated without the aid of report of the survey knowing commissioner. However, the observation in para-10 of the order that the suit is to be decided one way or the other basing on the report of the survey knowing commissioner is not correct as that is not the correct position of law. Law is settled that report and evidence of a survey knowing commissioner is to be treated as a relevant piece of evidence which is rebuttable and that such evidence is to be considered along with other evidence available on record for deciding the issue of identity of the land. So the report of the survey knowing commissioner is to be treated as a relevant piece of evidence and the same is to be considered along with other evidence available only after it is found acceptable in the face of objection, if any, raised by the parties. For such reason, the order of remand of the first appellate Court is confirmed, but the direction part is modified to the extent that after the remand learned trial Court shall depute a survey knowing commissioner for demarcation of the disputed Schedule B land and after considering the acceptability of the report, to treat such report as a relevant piece of evidence only along with other evidence and to decide the suit afresh according to law. Needless to observe that if any objection is filed to the report of the survey knowing commissioner then the survey knowing commissioner may be examined and parties will be given liberty to cross-examine the survey knowing commissioner and also to lead any rebuttal evidence.
9. The appeal is accordingly allowed in part. No cost.