JUDGMENT : K.P. Mohapatra, J. - This is an appeal from the judgment and decree passed by the learned Additional Subordinate Judge, Cuttack dismissing the Plaintiff?s suit. Plaintiff is the Appellant. 2. Plaintiff is the Municipal Council of Cuttack. His case is that he is the owner of plot No. 222 appertaining in Khata No. 277 with an area of O;311 acre situate in Mouza Mirkamal Patna otherwise known as Thoria Sahi of Cuttack town. The Plot has been recorded in the record-of-rights of the Current Settlement (Ext. 5) as latrine and as a matter of fact there is a public latrine on the land. The area within the plot surrounding the latrine is used for the purpose of conservancy. On the adjoining east of plot No. 222 are situate plot Nos. 265 and 652 belonging to the Defendant (Respondent). In the year 1962, the Defendant encroached upon a 35 decimals out of plot No. 222 on the eastern side and constructed a thatched house with pucca walls thereon shown in red in the plaint map without obtaining prior permission of the Municipal Council for making the construction. Despite notice the Defendant did not vacate the encroached. area and so in filing the suit the Plaintiff has prayed for a decree of eviction and damages at the rate of Rs. 105/- per annum. 3. The Defendant inter alia contended in the written statement that the suit 35 decimals of land in respect of which relief of eviction has been claimed does not appertain to plot No. 222, but appertains to and is a part and parcel of- plot Nos. 265 and 652 which the Defendant had purchased from on Durga Madhab Tripathy by a registered sale deed dated 27-10-61 for a consideration of Rs. 1,800/- along with a thatched house thereon. After purchase of the land, she constructed a house which was assigned holding No. 234/B of ward No. XX, for which the Defendant has been paying municipal tax. Therefore, the Plaintiff is not entitled to a decree for eviction. The alternative plea of the Defendant is that if the suit 35 decimals of land is found to be appertaining to Plot No. 222, then she has acquired title in respect thereof by adverse possession. 4. Therefore, the Plaintiff is not entitled to a decree for eviction. The alternative plea of the Defendant is that if the suit 35 decimals of land is found to be appertaining to Plot No. 222, then she has acquired title in respect thereof by adverse possession. 4. Three main issues were framed by the learned Subordinate Judge, namely whether (1) the suit 35 decimals of land appertains to plot No. 222 belonging to the Plaintiff or to plot Nos. 265 and 652 belonging to the Defendant; (2) the Defendant has perfected .her title in? respect of the suit 35 decimals of land by adverse possession, and (3) the suit is barred by limitation. In answering the issues, he held that the suit 35 decimals of land does not appertain to plot No. 222 belonging to the Plaintiff, but appertains to plot Nos. 165 and 252 belonging to the Defendant that being so, the Defendant did not acquire title in respect thereof by adverse possession. On the other hand the suit is barred by limitation under Article 144 of the old Limitation Act. Accordingly, he dismissed the suit. 5. Mr. B. Rath, learned Counsel appearing for the Plaintiff (Appellant) urged that serious illegality was committed by the learned Subordinate Judge in not directing issuance of a commission for local investigation to make survey and to report as to whether the suit 35 decimals of land as shown in red in the plaint map appertains to a Plaintiff?s plot No. 222 or Defendant?s plot Nos. 265 and 652 although he had passed an order therefore. This apart, he failed to properly appreciate the evidence adduced by the parties and went wrong in recording findings against the Plaintiff. Mrs. A. K. Padhi, learned Counsel appearing for the Defendant (Respondent), on the other hand contended that the evidence adduced by the parties support of findings recorded by the learned? Court below and issuance of a commission for local investigation at this stage would have the effect of supplementing the Plaintiff?s evidence which is impermissible according to law. 6. In the background of the facts of the case and the contentions made it appears to me that the foremost point which necessitates consideration is to determine whether the suit 35 decimals of land shown in red in the plaint map appertains to plot No. 222 belonging to Plaintiff or plot Nos. 6. In the background of the facts of the case and the contentions made it appears to me that the foremost point which necessitates consideration is to determine whether the suit 35 decimals of land shown in red in the plaint map appertains to plot No. 222 belonging to Plaintiff or plot Nos. 265 and 652 belonging to the Defendant. For this specific purpose the Plaintiff filed a petition for appointment of a survey knowing civil Court commissioner on 10-12-1970. On 16-12-1970 the learned Subordinate Judge allowed the petition and directed the Plaintiff to make deposit of Rs. 100/- tentatively towards the expenses of the commission. On 21-12-1970 the deposit as directed was made and the learned Subordinate Judge wrote a letter to the learned District Judge for nomination of the civil Court commissioner. On 12-1-1971 the Plaintiff filed copies of plaint, written statement; etc.. On 3-3-1971 nomination of the learned District Judge appointing Shri Bhikari Charan Singh as the civil Court commissioner was received in the Court of the learned Subordinate Judge who then directed the Plaintiff to file necessary papers for issuance of commission. On several dates thereafter, the Plaintiff applied, for time to take steps mainly to produce further documents. On 9-8-1971 the time petition was rejected on the ground that the Plaintiff by not filing the documents was not co-operating with the Court. The suit was then posted for hearing. On 23.9.1971, however, the Plaintiff filed documents with a petition praying therein to send the same to the civil Court commissioner. On several dates the Plaintiff?s petition referred to above was placed before the learned lower Court for orders, but no orders were passed. Side by side, the suit was adjourned from day to day for hearing. Hearing of the suit was commenced on 12-8-1972 and then was continued on 14-8-1972, 16-8-1972, 17-8-1972, 18-8-1972 and 21-8-1972 when evidence was closed and the suit was posted to 23-8-1972 for hearing arguments of both parties. During this period the learned Additional Subordinate Judge was completely oblivious of the Plaintiff?s petition, as well as the matter relating to issuance of commission to the civil Court commissioner. During this period the learned Additional Subordinate Judge was completely oblivious of the Plaintiff?s petition, as well as the matter relating to issuance of commission to the civil Court commissioner. On 23-8.1972, however, after hearing arguments of both sides in part, he passed a peculiar and unwarranted order, such as, ?The petition of the Plaintiff to review the order rejecting their petition to take out civil Court commissioner was not pressed at the time of hearing and so the same stands rejected.. ?It is significant to note that never before, the learned Additional Subordinate Judge had passed an order rejecting the Plaintiff?s petition to take out the civil Court commissioner. On the other hand, the petition was very much alive and the only question that was left for consideration of the Court was to accept some more documents which had been filed late and together with other documents which had earlier been filed by the Plaintiff to issue the commission to the nominated civil Court commissioner for local investigation under Order 26 Rule 9, Code of Civil Procedure. So there was no question of any review. Therefore, the position seems to be this that while commission for local investigation to the civil Court Commissioner was yet to be issued, evidence in the suit was taken, arguments were heard and a decree was passed dismissing the suit. It appears that being conscious of his own laches in not disposing of the commission matter before taking up hearing of the suit, the order dated 23-8..1972 was passed as if to show that the matter of issuance of commission was not pressed. 7. In a suit of this nature in which the result is very much dependent on the identification of the suit 35 decimals of land, it was impossible on the part of the learned trial judge to ignore the matter relating to appointment of a civil Court commissioner. But no importance was attached to it. While hearing the appeal, this Court was placed in a predicament as to find out the identity of the suit 35 decimals of land because the witnesses examined on behalf of the Plaintiff Who spoke about the identity are employees of the Plaintiff and the Tahsil Amin, ?who was examined by the Defendant, measured plot Nos. 265 and 652 belonging to the Defendant without notice and in the absence of the Plaintiff. 265 and 652 belonging to the Defendant without notice and in the absence of the Plaintiff. In order that effective justice shall be done to the parties it is wholly necessary to depute a surely knowing civil Court Commissioner to make, local investigation, measure the plots belonging to both the parties and then furnish his report and map showing identity of the suit 35 decimals of land. This view finds support from a decision reported in Gajraj and Ors. v. Ramadhar and Ors. AIR 1975 All. 106. Mrs. Padhi, however, relied upon another decision of the same High Court reported in Prayag Ice and Oil Mills v. State of U.P. 1971 A. L. J. 244 and urged and the lacuna in the Plaintiff before the trial Court cannot be filled in by the appellate Court by issuance of a civil Court commission. The facts of the case relied upon were, however, different. In that case, opportunity was given to the Plaintiff to take out a commission but the Plaintiff refused to avail of the opportunity. In this background of facts, it was held that an opportunity to fill in the lacuna or defect could not be provided in a case where the parties were aware of the defect or lacuna before the trial Court and ample opportunity had been given to them to remove such defect. In the instant case, however, the Plaintiff took steps for issuance of a commission, but the learned trial Court did not issue the commission and proceeded with the trial of the suit, Therefore, on facts, the decision cited by Mrs.. Padhi can be distinguished. 8. I am amply convinced that this is a fit case for remand with a direction for issuance of a commission to a survey knowing civil Court commissioner. Since nomination was made by the learned District Judge more than 10 years back, the same civil Court commissioner may not be available. Therefore, it would be appropriate to seek for afresh nomination. 9. In view of the conclusion arrived at above, it is no longer necessary to go into the other questions raised by the learned Counsel for the parties, as wen as, the merits of the evidence adduced by them. Therefore, it would be appropriate to seek for afresh nomination. 9. In view of the conclusion arrived at above, it is no longer necessary to go into the other questions raised by the learned Counsel for the parties, as wen as, the merits of the evidence adduced by them. Suffice it to say that after acceptance of the report of the survey knowing Civil Court commissioner, the suit 35 decimals of land will be properly identified and so it will be easier for the learned lower Court to dispose of the suit. He would then be able to decide the issue of acquisition of title by adverse possession by the Defendant. 10. For the reasons stated above, the appeal is allowed and the impugned judgment and decree are set aside. The suit is remanded for fresh disposal according to law in the light of the observations made above. Costs shall abide the result. Final Result : Allowed