JUDGMENT : P.K. Misra, J. - The Plaintiff-Respondents in an appeal now pending before the lower appellate Court have filed this revision challenging the order of the lower appellate Court directing the appointment of a Survey knowing Commissioner. 2. It is unnecessary to go into the details of the pleadings of the parties or the evidence on record in view of the order proposed to be passed hereunder. Suffice it to say that the suit for declaration of title and recovery of possession having been decreed, an appeal is now pending before the lower appellate Court at the instance of the Defendant. During the pendency of the appeal, the Defendant filed an application for appointment of a Survey knowing Commissioner to measure an demarcate the disputed land. The said application having been allowed by the lower appellate Court, the present revision has been filed. 3. Relying upon a Division Bench decision of this Court reported in 73 (1992) C.L.T. 197, Kunjabehari Mohanty (and after him) Subas Chandra Mohanty and Anr. v. Kishore Chandra Jagadev Ray and Ors. it is contended that the lower appellate Court has exercised its jurisdiction with material irregularity by allowing the application for appointment of a Survey knowing Commissioner without considering the question as to whether it is necessary to appoint a Survey knowing Commissioner in the background of the evidence already on record. In this connection, it is submitted that the impugned order itself indicates that the lower appellate Court ha snot scanned the evidence at all and has passed the order mechanically and only after hearing both the parties with reference to the evidence on record, the lower appellate Court should have taken a decision as to the necessity of appointment of a Survey-knowing Commissioner. 4. In the Division Bench decision of this Court, it was held: .... We have no hesitation to hold that an appellate Court when rejects a Commissioner's report is not bound to remit the matter to the trial Court for appointment of a fresh Commissioner and getting a fresh report in every case. It would be fully within its jurisdiction after rejecting the Commissioner's report to decide the appeal on the residue of evidence if it is possible on the part of the appellate Court. It would be fully within its jurisdiction after rejecting the Commissioner's report to decide the appeal on the residue of evidence if it is possible on the part of the appellate Court. But where the nature of dispute is such and the appellate Court after rejecting the Commissioner's report is not in a position to decide the dispute on the residue of the evidence, then in such a case it will have to remit the matter to the trial Court with a direction to appoint a fresh Commissioner for obtaining a fresh report.... In the present case though no Survey-knowing Commissioner had been appointed in the trial Court and as such the question of rejecting or accepting the report of the Commissioner did not arise, yet the ratio of the principle laid down in the aforesaid decision is applicable. The lower appellate Court should have considered the question of appointment of a Survey knowing Commissioner only after scanning the evidence and if it would have considered that the evidence on record was not sufficient to dispose of the matter, the question of appointing a Survey knowing Commissioner for the purpose of identification should have been considered. I agree with the contention of the learned Counsel for the Petitioner that the impugned order has been passed with material irregularity. Accordingly, while setting aside the impugned order of the lower appellate Court, I direct that the application of the Defendant-Appellant for appointment of a Survey knowing Commissioner is to be considered by the lower appellate Court at the time of hearing of the appeal and if after scanning the evidence on record, the lower appellate Court comes to a Conclusion that the question cannot be resolved on the basis of evidence on record, the question of appointment of a Survey knowing Commissioner shall be considered. 5. Subject to the aforesaid observation, the Civil Revision is allowed. There will be no order as to costs. The parties are directed to appear before the lower appellate Court on 21.3.1997 for receiving further direction in the matter. The lower Court records be sent back immediately. Final Result : Allowed