MEENA, M.—This revision under Section 230 of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as `the Act of 1955') has been filed by the petitioners against order dated 5th March 2010 passed by the Assistant Collector, Chomu in case No. 29/569/08, whereby application filed by the petitioners/defendants for appointment of commissioner has been rejected.

2. Brief facts of the case leading to this revision are that plaintiff/non-petitioner-1 filed a suit under Section 53 and 188 of the Act of 1955 against defendants/petitioners and non-petitioner No. 2 to 8 with averments that disputed land bearing khasra No. 4348 and 4347/2008 area 0.17 hectare is situated in village Khejroli Tehsil Chomu, which has been under joint tenancy and joint possession of plaintiffs and defendants. Late Shri Suwa, father/husband of defendants had 1/2 share in the disputed land, but after his death mutation was not recorded. Amongst these disputed khasra numbers, there is a piece of land bearing khasra number 4347 area 0.04 hectare, on which the plaintiff is has built up a house and he is residing in that house for last 30-40 years. There is no dispute about this khasra number 4347. The plaintiff had been in peaceful cultivatory possession of his 1/2 share in the disputed land, but after the death of father/husband of defendants, they are creating hurdles and interfering in plaintiff's possession and use of his 1/2 share of the land in dispute. Therefore, the plaintiff was forced to file the said suit in the Trial Court. An application for temporary injunction was filed by the plaintiff under Section 212 of the Act of 1955. During the pendency of the case, the petitioners/defendants submitted an application with request to appoint a commissioner for inspection of the site of the disputed land. The Trial Court, after hearing both the parties has rejected the application; vide its order dated 5th March 2010 without recording any reason thereof. So this revision has been filed before the Board with request to set aside the impugned order and accept the petitioner/defendants' application for appointment of commissioner.

3. Learned counsels for both the parties were heard and record and impugned order available in Trial Court's file was perused minutely.

4. The learned counsel for the petitioners, while repeating facts mentioned in the their revision application, has argued that application for appointment of commissioner has been rejected by the Trial Court by a non-speaking order, for which no reasons have been assigned. The application was aimed to get on record the physical position of the disputed land which would have been helpful for deciding the controversy between the parties. It has also been argued that there is provision under Order 39 Rule 7 and Order 26 Rule 9 of the Civil Procedure Code, 1908 for appointment of commissioner; and Order 39 Rule 7 of Civil Procedure Code, 1908 is applicable to application under Section 212 of the Act of 1955. Therefore the Trial Court has committed jurisdictional irregularity in rejecting the petitioner's application. The learned counsel has kept reliance on authority under 2008(1) RRT page 234 to get support in favour of his arguments.

5. The learned counsel for non-petitioners has contended that the suit filed in the Trial Court is simply a partition suit between co-tenants. There is no need for appointment of the commissioner to get the site report. The petitioners do not want to argue on application under Section 212 of the Act of 1955 and they have filed the application for the commissioner only for delaying the matter. Relying upon authority under 2011 (2) RRT page 792, the learned counsel has argued that the commissioner cannot be appointed for collecting evidence.

6. I have gone through the impugned order and have considered the arguments advanced by the learned Counsel for both the parties. Before filing reply to the application under Section 212 of the Act of 1955, the petitioners/ defendants filed a

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