ORAL ORDER Heard learned counsel representing the parties. With consent of learned counsels the matter is being disposed of finally at this stage. 2. This is an appeal preferred against judgment of remand delivered in Title Appeal No. 52/2006 by learned 4th Additional District Judge, F.T.C. - IV, Samastipur. 3. Admittedly, plaintiff respondent preferred Title Suit No. 43/1995 for declaration of Title and recovery of possession over the suit land as mentioned in detail in the plaint with a relief of mesne profit of injunction etc. On consideration of the materials available suit was dismissed on 28.04.2006 giving rise to the appeal, where the appellate court arrived at the conclusion to remand the case with a direction to the trial court to take steps for appointment of fresh Survey Knowing Pleader Commissioner for getting scientific measurement report on the point which is as such: - “(1) Whether the Shisham trees as claimed by the plaintiffs in schedule III of the plaint is part and parcel of plot no. 162 and 124 (II) Whether any portion of plot no. 124 has been encroached over by the defendants and has been amalgamated in plot no. 90 and frame a separate issue.” giving rise to present appeal by defendant appellant. 4. it is undisputed fact that initially a Survey Knowing Pleader Commissioner was appointed as early as on 20th December 1995, but somehow or the other his appointment was recalled on 28th February 2002 and next date fixed i.e. 13.03.2002, petition was filed before the trial court for appointment of another Survey Knowing Pleader Commissioner, but since petition was not pressed it appears dismissed on 26.04.2002, and also as is evident from the order of appellate court that earlier appointed Survey Knowing Pleader Commissioner, as submitted, his report and it was argued on behalf of the plaintiff respondent (appellant there) that such report could have been considered by the trial court which he did not and this appears prompted, the appellate court, who on finding that such report could not have been considered remand the mater for taking fresh step as stated above. 5. 5. It is contended on behalf of the appellant that materials before the court was sufficient to decide the matter in issue and if at all any fresh issue was required to be framed, it could have been done by the appellate court itself, but there is no finding of the court that materials are not sufficient even the plaintiff respondent never applied for any material to be considered as additional evidence. Order 41 Rule 24 of Code of Civil Procedure which reads as such: “24. Where evidence on record sufficient, Appellate Court may determine case finally – Where the evidence upon the record is sufficient to enable the Appellate Court to pronounce judgment, the Appellate Court may, after resettling the issues, if necessary, finally determine the suit, notwithstanding that the judgment of the Court from whose decree the appeal is preferred has proceeded wholly upon some ground other than that on which the Appellate Court proceeds.” empowers the Appellate Court to decide the matter finally, but in absence thereof or in absence of any finding that materials not sufficient and appellate court is not in a position to decide the issue involved, no order of remand can be passed. Further, reliance is placed on decision of Apex Court in a case Kattukandi Edathil Krishnan and Anr. Vs. Kattukandi Edathil Valsan and Ors. reported in (2006) 9 SCC 166 ; Girija Kumar (1) and Ors. Vs. State of Himachal Pradesh and Anr. reported in (2007) 14 SCC 93 and Gowrammanni and Ors. Vs. V.V. Patil reported in (2010) 4 SCC 774. 6. Having regard to the facts and circumstances, finding the order of appellate court below not sustainable, hence, it is set aside, and court below is directed to decide the appeal on its own merit. 7. Let a copy of this order be communicated to the courts below as stated above through Fax at the cost of appellant.