S. C. MOHAPATRA, J.

( 1 ) IN this Civil Revision by the defendant the order appointing a Commissioner in exercise of the power under O. 26, R. 9, C. P. C. is assailed.

( 2 ) PLAINTIFF's suit as it stands at present is for mandatory injunction to the defendant for removal of a wall constructed by the defendant obstructing his passage. The case of the defendant is that the land which is claimed by the plaintiff to be a passage is a part and parcel of his backyard which was not used by the plaintiff as a passage. There is no dispute as to the disputed land belonging to different plot numbers.

( 3 ) BEFORE evidence was adduced in the suit, plaintiff filed an application for appointment of a Commissioner for local investigation. In spite of resistance by the defendant, the prayer was allowed. The following order was passed :"12-3-86. Both parties filed haziras. The petition under O. 26, R. 9, C. P. C. filed by the plaintiff and the counter thereto are put up. Heard. It will elucidate the matter if the Commissioner inquires into the matter. Hence, the petition, under O. 26, R. 9 C. P. C. is allowed, plaintiff to deposit a sum of Rs. 50/- towards Commissioner's fee in course of the day.