Honble JAIN, M.—This revision petition has been filed under Section 230 of the Rajasthan Tenancy Act, 1955 (hereinafter to be called "the Act") against the order of Sub-Divisional Officer, Bharatpur dated 30.8.2005.

2. Briefly stated, facts of the case are that plaintiff/non-petitioners filed a suit under Section 188 of the Act before S.D.O., Bharatpur pertaining to khasra No. 312 area 3 areas of village Mudhota which is still pending. Petitioner submitted an application for appointment of Commissioner under Order 26 Rule 9 CPC which was rejected by SDO on 30.8.2005. The present revision has been filed against this order.

3. Advocate for petitioner argued that lower Court has passed non-speaking, non-reasoned and a vague order, provision of Order 26 Rule 9 CPC says that wherever there is necessity for elucidating any matter in dispute, the Court must appoint Commissioner to reach at conclusion. He cited following case laws in support of his contention and prayed to quash the impugned order dated 30.8.2005 and remand the case t pass a speaking order:–

AIR 1989 Orissa page 21

AIR 1996 Kerala page 276

AIR 1989 Kerala page 78

4. Advocate for non-petitioners argued in reply that a suit under Section 188 has been filed by them. Non-petitioners are the recorded khatedars as per revenue record. He said that lower Court has given reasoned & speaking order. It is the discretion of the trial Court to agree for appointment of Commissioner or not. In the present case, spot inspection was not required and therefore application of the petitioner was rightly rejected. He cited following case laws:–

2000 WLC (UC) page 186

1995 RRD page 452

2002 RRD page 313, 445

1994 RRD page 178

1999 RRD page 112

5. After going through the file and arguments placed by both the advocates, it is found that suit land is recorded in the name of non-petitioners as per Jamabandi of Svt. 2059-62. Suit under Section 188 if pending before the lower Court in which final decision will be given. I analysis the case laws cited by learned advocates in this context.

AIR 1989 Kerala page 78 – CPC, 1908, Order 26 Rule & Order 8 Rule 1 — Local inspection — Issuance of Commissioner for — Filing of written statement is not a condition precedent.

AIR 1989 Orissa page 21 — Order 26 Rule 9 — Court Commissioner for local investigation — Appointment of — Discretion of Court — Title suit — Survey of suit land by private Commissioner — Surveyor giving contradictory reports. Application for appointment of Court Commissioner to ascertain possession and alleged encroachment on suit land — Appointment of Court Commissioner is necessary.

AIR 1996 Kerala page 276 – Order 26 Rule 9 — Local Commissioner — Appointment of — Suit for permanent injunction restraining defendants from encroaching upon plaintiffs land — Application by plaintiff for appointment of local Commissioner for measurement & demarcation of land — Entitled to be allowed.

Case law 2000 WLC (UC) page 186 (HC) cited by advocate for non-petitioners reads as under:

CPC Order 26 Rule 10 — Scope — Provisions of Order 26 cannot be used nor collecting evidence (to be adduced in the suit).

2002 RRD page 313 – Order of SDO not final. Revision against an interim order is not maintainable.

1999 RRD page 112 – CPC Order 26 Rule 9 — Trial Court appointed Tehsildar as Commissioner to report about possession — Held, Suit pending — Order is neither legal nor justified — Powers vested in the Court of SDO have not been rightly exercised — It is not clearly a case decided, it is an order to assist one party and therefore, liable to be rejected. Order of SDO set aside.

In 1994 RRD, it has been held that it is in the jurisdiction of a Court to decide whether in the given circumstances, site inspection is necessary or not. The Appellate and Revenue Courts should not interfere in such an order.

Same view has been expressed in Jagdish Prasad vs. Tofli & Ors. decided on 31.8.2004 by Single Bench of the Board of Revenue.

6. After considering above case laws, it is established

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