D. P. MOHAPATRA, J. ( 1 ) THE plaintiff in Title Suit No. 131 of 1986-I of the Court of the Munsif, Parlakhemundi has filed this revision petition challenging the Order dt. 31-10-1987 rejecting his application under O. 26, R. 9, Civil Procedure Code for appointment of a Commissioner for measuring the disputed property to ascertain the encroachment by the defendant-opposite party No. 1 on his land. ( 2 ) THE gist of the case, as it appears from the impugned Order, is that the plaintiff and defendant 2, the two brothers were allotted adjacent plots of land in the partition of the family properties in 1959 and continued in exclusive possession of their respective plots since then. Thereafter, defendant 2 sold a portion of the land allotted to him to defendant 1 lying just adjacent to the plaintiffs land. It is the further case of the plaintiff that the defendant 1, the purchaser, encroached upon a portion of his land and threatened to make construction thereon. Therefore he filed the suit for declaration of title to the property described in the schedule to the plaint and for permanent injunction against defendant 1 restraining him from encroaching upon any portion of the said land and from making any construction thereon. On the application under O. 39, R. 1, C. P. C. filed by the plaintiff, an order of interim injunction was passed by the trial court. It is relevant to mention here that the plaintiff categorically stated in the application under O. 26, R. 9, C. P. C. for appointment of a Commissioner that before filing the suit he had got his land as well as that of defendant I measured by a survey knowing Commissioner, one B. Narasimhulu and on the bash of the report of the said Commissioner he described the encroached land in the schedule to the plaint. After defendant 1 appeared in the suit and filed his written statement, he filed an affidavit of the said surveyor B. Narasimhulu stating that defendant 1 had not made any encroachments on the plaintiffs land, contrary to his earlier report. Under such peculiar situation he sought assistance of the Court to appoint a survey knowing Commissioner for ascertaining the real state of facts. Under such peculiar situation he sought assistance of the Court to appoint a survey knowing Commissioner for ascertaining the real state of facts. ( 3 ) IT appears from the impugned Order that the learned Munsif did not accept the prayer of the plaintiff mainly on the grounds that sending a Commissioner for local investigation at that stage was not proper and the parties could get the land measured by a private Commissioner. He relied on the decision of this Court in the case of Indramani Behera v. Ghanashyam Behera, reported in (1986) 62 Cut LT 398. The learned Munsif further observed that if at an appropriate stage the Court feels the necessity for it, may appoint a Commissioner. ( 4 ) SHRI P. K. Ray, learned counsel for the petitioner, contends that the Court below clearly erred in rejecting the prayer for measurement of the land by a Civil Court Commissioner relying on the aforesaid decision. Indeed, it is the contention of the learned counsel for the petitioner that the decision has been misread and misconstrued by the Court. Mrs. A. K. Padhi for the opposite parties, on the other hand, supported the impugned Order in course of her submissions. ( 5 ) ON careful consideration of the reasons given in the impugned order I am of the view that there is substance in the contention raised by the learned counsel for the petitioner. Order 26, R. 9, C. P. C. vests power in the Court to appoint a Commissioner in any case in which the Court deems a local investigation to be requisite or proper for the purpose of elucidating any matter in dispute. The nature of the controversy in the present case as discussed earlier is that a small portion of the land, 120' in length and 1'-8" in breadth belonging to the plaintiff has been encroached by defendant No. 1 and some constructions have been by the latter on the said land and the relief sought in the suit is for declaration of title to this land and for permanent injunction against the defendants not to encroach upon the same. It is therefore necessary to ascertain the fact whether the alleged encroached portion appertains to plaintiff s land or that of the defendant 1; the present possession of the parties over the suit land and existence of construction, if any, thereon. It is therefore necessary to ascertain the fact whether the alleged encroached portion appertains to plaintiff s land or that of the defendant 1; the present possession of the parties over the suit land and existence of construction, if any, thereon. It is not the finding of the learned Munsif that considering the nature of dispute raised in the suit appointment of a Commissioner for measuring the land or investigating into the matter of possession or other relevant fact, is unnecessary. In fact, the Order indicates that he is conscious that such measurement may be found to be necessary. The main consideration which appears to have weighed with the learned trial Judge is that the parties could measure the land by engaging a private Commissioner and therefore the Court should not appoint a Commissioner in the case. The reason completely overlooks the fact and circumstance, somewhat peculiar, of the present case, that the plaintiff asserts that the private Commissioner who measured the land has gone back on his report and has filed an affidavit contrary to his report. In such peculiar circumstances, appointing a private Commissioner by the plaintiff would serve little purpose. It will only add to the confusion, which, if the allegations are correct, is apparent. Therefore, in such a situation, in my view, the course open to the party will be to seek the assistance of the Court under O. 26, R. 9, C. P. C. This Court in the case of Indramani Behera (1986-62 Cut LT 398) (supra) laid down that in a case where it is open to the party to take a private Commissioner for ascertaining the particular fact it would not be necessary for the Court to do so since the Commissioner's report whether appointed by the Court or privately by a party is an item of evidence and not conclusive in the matter. This Court did not lay down a general principle that in no case the Court will exercise its discretion under O. 26, R. 9, C. P. C. because there would hardly be a situation where the action proposed to be done through a Commissioner appointed by the Court cannot be done by a private Commissioner. Therefore the learned counsel for the petitioner is right in his submission that the learned Munsif misread and misconstrued the decision of this Court in the case of Indramani Behera (supra ). Therefore the learned counsel for the petitioner is right in his submission that the learned Munsif misread and misconstrued the decision of this Court in the case of Indramani Behera (supra ). In a subsequent decision, in the case of Municipal Council, Cuttack v. Smt. Rambhabati Devi, (1987) 64 Cut LT 298, it has been observed that where the result of the case is very much dependent on the identification of the suit land and the Court proceeded with the trial of the case without appointing a Commissioner for the purpose it was necessary for the Court in appeal to depute a survey knowing Commissioner to make local investigation, measure the plots belonging to both the parties and for furnishing a report and map showing identity of the suit land. This course was held to be necessary in the interest of justice. ( 6 ) ON the analysis of the position made in the foregoing paragraphs and for the reasons stated therein, the revision petition is allowed and the impugned order is vacated. The trial Court is directed to take steps to appoint a suitable Commissioner for measurement of the lands of the plaintiff and defendant 1 to ascertain the possession of the parties over the respective lands and also to ascertain the existence of encroachments as alleged in the plaint. It will be open to the learned Munsif to direct the Commissioner to undertake any other task which he feels necessary for proper adjudication of the suit. Both parties will bear their respective costs of this proceeding. Revision allowed. .