Hon'ble VYAS, J.—In this petition filed under Article 227 of the Constitution of India, the petitioner has prayed for quashing order dated 31.10.2011 passed by the Civil Judge (Jr. Dn.), Pali whereby the Trial Court allowed the application filed under Order 26, Rule 9 CPC and Order 39 Rule 7, read with Section 151, C.P.C. and appointed the Tehsildar, Pali as Commissioner to give report as per the revenue record of the disputed land.

2. Learned counsel for the petitioner submits that the plaintiff-petitioner preferred a suit for permanent injunction before the Civil Judge (Jr. Dn.), Pali because respondent No. 1 issued a public notice in which it is published that in the nearby area of Khasra Nos. 930, 932, 933, 954 and 961 there is a residential scheme of Municipal Council, Pali know as Gandhi Nagar Awasiya Yojana and land of Khasra Nos. 934 and 953 has been illegally included in the Mahaveer Nagar Yojana, in which, plot No. 754 of the petitioner is situated. The petitioner stated in the suit that after lapse of about 20 years of allotment made in favour of the plaintiff-petitioner by Mahaveer Grih Nirman Samiti, illegal notice was published by the Municipal Council, Pali whereas the petitioner-plaintiff is having valid patta in her favour.

3. The petitioner submitted all the relevant documents before respondent No. 1 and it is submitted by learned counsel for the petitioner that there is no illegality in the allotment made in favour of the petitioner-plaintiff. However, in March 2011 respondent No. 1 started construction of a distich near the plot of the petitioner treating the land as the land of the Municipal Council. The petitioner filed suit along with temporary injunction, notices were issued and, after issuance of the notice, written-statement and reply was filed and, thereafter, application under Order 26 Rule 9 and Order 39 Rule 7, read with Section 151, C.P.C. was filed by the respondent. The petitioner filed reply to the application and submitted that no Commissioner can be appointed because appointing any Commissioner for the purpose of ascertaining the correctness of the land from the revenue record is nothing but to grant an opportunity to the respondent Municipal Council to create evidence in their favour, therefore, there is no question of appointment of Commissioner to ascertain correctness of the situation of the land in question. The learned Trial Court after hearing both the parties allowed the application and Tehsildar Pali has been appointed Commissioner to give report as per the revenue record.

4. Learned counsel for the petitioner submits that order impugned dated 31.10.2011 whereby the Tehsildar, Pali has been appointed Commissioner is illegal because valid patta was issued in favour of the petitioner by the Mahaveer Grih Nirman Samiti after following the procedure land down in the rules for issuing patta. Therefore, instead of deciding the suit on the basis of evidence recorded in the suit the Trial Court has committed error in appointing Commissioner to get report of the land in question.

5. It is contended by learned counsel for the petitioner that the order passed by the Trial Court is unreasoned order because by this order the learned Trial Court has granted opportunity to create evidence in support to contention of the Municipal Council whereas as per settled law the party disputing the pleading must itself produce evidence, therefore, creating any evidence by an order of the Court is totally illegal.

6. Learned counsel for the petitioner invited attention of the Court towards judgments reported in AIR 1998 Raj. 224, 1997 DNJ (Raj.) 452 and 2000 WLC (Vol. I) (Raj.) 186 and submits that this Hon'ble Court adjudicated in the above cases that no evidence can be created in favour of either of the parties by appointing any Commissioner by this Court, therefore, the order impugned suffers from gross illegality.

7. After hearing learned counsel for the petitioner, I have perused that plaint and written-statem

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