The court emphasized that it is the court's function to decide matters based on evidence adduced by the parties, and the appointment of a Commissioner to determine possession usurped the court's jurisdiction.

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 the property when there is dispute between the parties regarding the same. It is the court, who has to decide the matter on the basis of evidence to be adduced by the parties. It is not the function of the Commissioner and to report to the court as to who is in possession of the same. Reference, if any, may be made on the decisions reported in 1996 Karnataka 257 and 1988 Rajasthan 224.

6. In the facts and circumstances of the present case I am of the view that the impugned order cannot be allowed to stand.

7. This application is thus allowed and the order dated 3.2.199 is hereby quashed.