JUDGMENT : S.K. Ray, J. - This second appeal is by Defendant's 3 to 5 from the reversing judgment of the Subordinate Judge, Jajpur by which the decree of the trial Court in so far as it related to properties under lot I-B of the schedule to the plaint was set aside thereby decreeing the suit. 2. The Plaintiffs instituted the suit for a declaration of title, demarcation of boundary and recovery of possession by removing the fence which had been put up by the Defendants by encroaching upon the Plaintiffs' plot 2165. Originally the suit was regarding three plots namely plots 2165, 2144 and 2241. The trial Court decreed the suit in regard to plots 2241 and 2141 and dismissed it in regard to plot 2165. The decree of the trial Court in regard to plots 2144 and 2241 has assumed finality and is no longer in dispute in the second appeal. The only controversy is now restricted to lot I-A and I-B of plot No. 2165 Plot No. 2165 admittedly belongs to Plaintiffs 1 to 6 and plot No. 2167 which adjoins the former plot of The Plaintiffs to its east belongs to the Defendants. As would appear from the map given in the plaint and also as drawn by the Commissioner appointed in the case, the southern portion of those plots contained respectively the houses of the Plaintiffs and Defendants. The back portion, that is the northern portion of those plots were respectively used as Bari or Khala of the parties lot I-A is a Dokadi which is an open space in between the residential houses of the parties on their respective plots. As The Plaintiff's case is that this open space is being used by the Defendants as also by the Plaintiffs, they only want a declaration of their title to it. Lot I-B relates to the portion on the Bari side of plot 2165 which has been encroached upon by the Defendants by shifting their fence. The Plaintiffs want recovery of possession of this. 3. A civil Court Commissioner was taken out by the Plaintiffs in the case to find out by survey as to whether lot I-A and lot I-B appertained to their plot 2165. The Commissioner found that a part of the lot I-A appertains to Plaintiffs' plot 2165 and the entire lot I-B also appertains to the Plaintiffs' plot 2165. 3. A civil Court Commissioner was taken out by the Plaintiffs in the case to find out by survey as to whether lot I-A and lot I-B appertained to their plot 2165. The Commissioner found that a part of the lot I-A appertains to Plaintiffs' plot 2165 and the entire lot I-B also appertains to the Plaintiffs' plot 2165. This report was accepted by the trial Court after hearing the objections. But on assessment of the entire evidence, the trial Court has rejected it in his judgment. The basis of hill rejection will be clear from the following extract from hi, judgment: ....In his report, while giving measurement of plot No. 2165 he has said that the northern boundary is 165 links in length. Further down while giving the measurement of plot No. 2144 he says that the southern boundary of the plot is 160 links long as actually found in place of 165 links & it should be. It is to be particularly noticed that though at two different places he has given the measurement of the aforesaid two plots, that particular measurement relates to one and the same boundary line, it is not understood how he failed to notice the shortage of 5 links and mention it in his report while describing plot No. 2165 but noticed the shortage when dealing with plot No. 2144. It is manifest that he has fallen into some error and having proceeded on that erroneous data of shortage of 5 links, necessarily he has placed the boundary line 5 links to the further each of where it should be with the ultimate result that the disputed portion of the Bari 908 90180 80 part of the Dokadi was shown 808 part of the Plaintiffs' plot... I think the trial Court had misunderstood the report. The Commissioner has given the Actual measurement of the four sides of plots 2165, 2144 and 2141 with reference to survey map. Then in para 3 of his report he has given Actual southern boundary of plot 2144 according to survey map which accords with the northern boundary plot 2165 and that is the common boundary of plots 2165 and 2144 both of which belong to the Plaintiffs. Then in para 3 of his report he has given Actual southern boundary of plot 2144 according to survey map which accords with the northern boundary plot 2165 and that is the common boundary of plots 2165 and 2144 both of which belong to the Plaintiffs. In para 3 he further states that the southern boundary of 165 kadis fallen short by 5 kadis on spot measurement apparently with reference to Actual possession thereby indicating encroachment of 5 kadis. The mistake, which appears to be clerical committed by the Commissioner in para 3 of his report is in using the expression (sic) When so read there is no ambiguity in the report and there is no reason to discard it. The lower Appellate Court, however, has accepted the report of the Commissioner, and I think rightly. The Plaintiffs, therefore are entitled to recover possession of lot I-B and part of lot I-A which, according to the measurement of the Commissioner, appertain to Plaintiff's plot. 4. The main point that is urged in this appeal is that the Plaintiffs' plot 2165 is Bahel land appertaining to the tenure of Bajyapti Madhysatwadhikari. This intermediary interest belonging to the Plaintiffs vested in the State in the year 1966, as the same was abolished. It is contended on behalf of the Defendants- Appellants that title of the Plaintiffs having lapsed by reason of operation of the provisions of the Orissa Estates Abolition Act, the suit must fail. These facts are not disputed by the Plaintiffs, but they say that they filed an application under Sections 6 and 7 of The Estates Abolition Act on 7-8-1967 and that application was treated as a lease application under the prevalent lease rules of the State and, disposed of as such. The Tahasildar who dealt with this application settled this land comprised in plot 2165 with the Plaintiffs by his order dated 19-1-1971. This settlement having come into operation from 19-1-1971 during the pendency of this appeal, this Court, it is contended on behalf of the Plaintiff-Respondents, should take notice of that fact and modulate the relief accordingly. The Tahasildar who dealt with this application settled this land comprised in plot 2165 with the Plaintiffs by his order dated 19-1-1971. This settlement having come into operation from 19-1-1971 during the pendency of this appeal, this Court, it is contended on behalf of the Plaintiff-Respondents, should take notice of that fact and modulate the relief accordingly. If this settlement is taken note of, Then, Plaintiffs would be entitled to the declaration of title and recovery of possession as prayed for notwithstanding that their initial title bad been extinguished by reason of abolition of the estate, because they have acquired a fresh title by reason of the lease granted by the State. I think it is the settled position of law that hearing of appeal under the procedural law of India is in the nature of re-hearing and the Appellate Court (sic) entitled to take into account the facts and events which come into existence after tile decree is appealed from and to mould the relief in accordance with the same Vide 1941 Privy Council-51, Kotturu swami v. Veeravva AIR 1959 S.C. 57 th, Janardan Naik and Another Vs. Khageswar Naik and Others Radhacharn Das v. Bhima Patra 1965 C.L.T. 996, Krushna Chandra Sahu v. Khetrabasi Panda and Ors. 37 (1971) C.L.T. 929. In this case, the suit was filed on 4-12-1962. The trial Court disposed of the case by judgment dated 30-4-1966 and the first Appellate Court's decree was passed on 6-1-1968 and this second appeal was pending on 19.1.1971 when the suit land, was settled by the State with the Plaintiffs. I am, therefore, entitled to take into account the fact of the settlement and in that view the Plaintiffs are certainly entitled to be granted the relief of recovery of possession of plot 1-B land even though their original title thereto which formed the basis of the suit had lapsed by the abolition of the estate. In proof of grant of lease in favor of the Plaintiffs on 19-1-1971, the learned Counsel has filed an application under Order 41, Rule 27, Code of Civil Procedure, tendering the certified copy of The order of The Tahssildar which shows that the suit land has been settled with The Plaintiffs as additional evidence. In proof of grant of lease in favor of the Plaintiffs on 19-1-1971, the learned Counsel has filed an application under Order 41, Rule 27, Code of Civil Procedure, tendering the certified copy of The order of The Tahssildar which shows that the suit land has been settled with The Plaintiffs as additional evidence. There is no objection to this document on behalf of the Defendants and indeed there could not be any because this piece of documentary evidence could not be produced at The trial stage, since it came subsequently into existence. I, therefore, accept this certified copy of the order dated 19-1-971 of the Tahasildar as a piece of additional evidence in this case and direct that it be marked as Exhibit 4 on behalf of The Plaintiffs. In view of this evidence, as Actually stated, The Plaintiffs are bound to succeed. 5. It is contended on behalf of the learned Counsel for The Appellants that Their clients have further gone up against the order of the Tahasildar dated 19.1.1971 and prayed on the authority of The decision of this Court reported in Jayadev Padhan and Others Vs. Managobinda Sathua that The bearing of this appeal should be stayed until The disposal of The proceeding in which the order of The Tahasildar dated 19-1-1971 has been impugned. I would have agreed to big request, on The authority of this decision, to keep in abeyance the bearing of this second appeal pending disposal of that proceeding, if he had produced before me some prima facie by way of affidavit or otherwise that any such proceeding as alleged is really pending. In fact, I gave this learned Counsel for the Appellant some time to enable him to contact his clients and either to file an affidavit stating that any proceeding in any higher Court is pending challenging the correctness of the order of the Tahasildar referred to above or otherwise satisfy me about The pendency of any such proceeding. But be has failed to satisfy me on the point. Accordingly I have not acceded to his request to stay The proceedings of the appeal. In the result, therefore, I find no merit in this appeal, and accordingly, dismiss the same with costs.