1. Heard learned counsel for the parties.

2. This application is directed against the order dated 3.2.99 passed by the learned Subordinate Judge find, Nalanda appointing a pleader Commissioner on the application filed by the plaintiffs-opposite party.

3. The main grievance of the petitioners-defendants is that the order appointing Pleader Commissioner in this circumstances amounts to procure further evidence for filling up the lacuna in favour of the opposite party.

4. It appears that in the suit plaintiffs filed a petition praying therein to appoint a Pleader Commissioner to ascertain as to who has constructed the property in dispute and who is in possession thereof. This prayer was vehemently opposed by the petitioners-defendants but the learned court below having observed that the witnesses of the defendants deposed that the property was constructed by the defendants in the interest of Justice, the Pleader Commissioner was appointed.

5. In my view the learned court below has usurped the jurisdiction, which has not been vested in it under the law. It is well settled now that a Commissioner will not be in a position to determine the question as to who is in possession of t