Heard learned counsel appearing for the petitioner, learned counsel appearing for the respondent no.1 and also learned counsel appearing for the respondent no.3, proforma defendant.

2. Learned counsel appearing for the petitioner submits that the petitioner-plaintiff filed a Title Suit bearing no.148 of 2002 in the court of Munsif, Giridih for declaration of right, title and interest over a piece of land having a kachcha house constructed by the plaintiff as well as confirmation of possession, Valuation of the property was given as Rs.5,000/.

3. The" defendant on putting appearance filed a written statement wherein plea was taken that the house in question had never been constructed by the plaintiff, rather it was constructed by the defendant and that it is permanent construction value of which is Rs.5,00,000/-. On such pleading, prayer was made to decide the vaiuation of the property as preliminary issue.

4. The matter relating to the property was taken up by the court wherein both the parties adduced their evidences sticking to their claim and therefore, the petitioner filed an application under Order XXVI Rule 9 of the Code of Civil Procedure with a prayer that a Pleader Commissioner be appointed for elucidating the fact as to whether kachcha house or the constructed house is there over the land in dispute so that market value of the property be ascertained.

5. That prayer made by the plaintiff was objected to by the defendant by taking plea that the evidences are going on and therefore, the same be decided on the basis of evidence adduced on behalf of the parties.

6. The court, vide its order dated 18.1.2005 accepted the plea advanced on behalf of the defendant and rejected the petition filed on behalf of the petitioner for appointment of a Pleader Commissioner.

7. Being aggrieved with that order: the plaintiff-petitioner has moved this application.

8. Learned counsel appearing for the petitioner submits that on the one hand, the claim of the plaintiff is that a kachha/thatched house is there over the suit land which has been constructed by the plaintiff whereas on the other hand, the defendant has been taking plea that pucca house has been constructed by him, valuation of it as well of boundary wall is Rs.5,00,000/- .

9. Thus, it was submitted that unless it is ascertained as to whether there exists kachha/thatched house or a constructed house, the court cannot come to right conclusion relating to the valuation of the property and therefore, the court below• has wrongly rejected the prayer made on behalf of the petitioner.

10. As against that, learned counsel appearing for the defendant-respondent submits that three has been no illegality in the order passed by the trial court as when the parties were adducing their respective evidences, there is no need of appointing any Pleader Commissioner.

11. Having heard learned counsel appearing for the parties, it does appear that the plaintiff-petitioner on one hand, putting forth his claim that a kaccha/thatched house has been constructed over the suit land, valuation of which is Rs.5,000/whereas on the other hand, defendant has taken a plea that pucca house as well as boundary wall has been constructed over the suit land, valuation of which is Rs.5,00,000/-. On such conflicting stand, the court took up the issue relating to the valuation of the property as a preliminary issue upon which parties adduced their evidences and both the parties are sticking to their claims. In that event. it would be difficult for the court to come to the right conclusion unless it is ascertained as to whether there exists a pucca house or kaccha house over the land in dispute, ascertainment of which would be determining factor for assessing the market value and under that situation, the trial court committed an illegality in rejecting the petition filed on behalf of the petitioner as it is for the purpose of elucidating any matter in dispute or of ascertaining the market value of any property, the Commi