Arun Kumar Jha, J.—Heard learned counsel for the parties.

2. The instant petition has been filed for setting aside the order dated 14.02.2017 passed by learned Sub Judge IV, Danapur whereby and whereunder the application filed under Order 26 Rule 9 and Section 151 of the Code of Civil Procedure (in short “the Code”) by the plaintiff/respondent 1st set in Title Suit No 433 of 2013 for appointment of Pleader Commissioner stands allowed. Subsequently, by filing interlocutory application, further relief has been sought against the report dated 16.01.2018 which was submitted by the learned Advocate Commissioner before the learned trial court.

3. Learned counsel for the petitioner submits that the plaintiffs have filed a completely frivolous suit without any documents and in order to create evidence, they filed the application under Order 26 Rule 9 of the Code and the learned trial court erroneously allowed the said application mentioning that for ascertaining the rights and possession over the suit property, the report of the Pleader Commissioner was necessary and thereby allowed the application for submission of report of the Pleader Commissioner on the points mentioned in the application dated 29.11.2016 filed by the plaintiffs under Order 26 Rule 9 of the Code. Learned counsel further submits that claim of the plaintiff is based on the fact that one Jagdish Kumar Kunwar got the suit property from the father of the petitioners, Hira Prasad Singh as well as father of respondent nos. 4, 5, 6,7 Ram Kinkar Prasad Singh and grand father of respondent no. 8, in the year 1935 and 1936, respectively by way of settlement. But this claim is false and as Hira Prasad Singh was allotted part of the suit property by way of partition after 1963 through Partition Suit No. 55 of 1963. On the other hand, Ram Kinkar Prasad Singh got the suit property by way of Title Partition Suit No. 52 of 1958/15 of 1959 in which the final decree was prepared on 03.02.1964 and thus, the Schedule 2 of the suit land was allotted to Ram Kinkar Singh and his sons in 1964. If the suit property came into the share of Hira Prasad Singh and Ram Kinkar Prasad Singh in 1963 and 1964 respectively, it was not possible for them to issue Hukumnama or make the settlement of the suit land in 1935, 1936 in favour of Jagdish Kumar Kunwar. When partition took place in the family of Ram Kinkar Prasad Singh sons vide Title Partition Suit No. 180 of 1970, the Schedule 2 land was included and partitioned and the final decree was prepared on 13.03.1974. Learned counsel further submits that in the life time of Jagdish Kumar Kunwar there was partition of his family properties and a compromise decree has been passed. But in the said partition, the present suit property was not included and it goes on to show that the suit land does not belong to Jagdish Prasad Kunwar or his sons. The said partition suit was Title Partition Suit No. 61 of 1970 in which the compromise decree was passed on 06.05.1971 and it also proves that by that time the alleged Hukumnama and Zamindari receipts with respect to the said property were not in existence. Thus, the learned counsel submits that the plaintiffs knowing the fact that they have got no paper of title or possession, tried to create evidence in their favour by filing the application for appointment of Pleader Commissioner and the learned Trial Court allowed the same when there was no requirement for appointment of Pleader Commissioner in the Title Suit No. 433 of 2013 when the issues were yet to be settled and only pleadings have come on record. However, when the written statement was filed by the defendants/petitioner, the plaintiffs filed their application for appointment of Pleader Commissioner and the same was allowed by the learned trial court against the provisions of law as no party could be allowed to gather evidence in his favour through the Pleader Commissioner. Thus, learned counsel submits that the impugned order is not sustainable and the sa