JUDGMENT 1. - Heard learned counsel for both parties. 2. The petitioner has in this petition challenged the order dated 17.06.2006 passed by the S.D.M. Kishangarh-Bas, Alwar as also the order dated 18.10.2006 passed by the Board of Revenue for Rajasthan, Ajmer. Learned 5 S.D.O. vide his order dated 17.06.2006 dismissed the application filed by the petitioner under Order 26 Rule 9, Code of Civil Procedure, 1908 for appointment for the commissioner to inspect the disputed site. The Board of Revenue for Rajasthan, Ajmer rejected the revision petition filed by the petitioner against the said order. 3. The respondent no.3 Smt. Kusum Agrawal, filed a revenue suit, in which the petitioner is one of the defendants. That suit has been filed for partition of the disputed agricultural land as also for the permanent injunction. 4. Contention of Shri Satyavrat Sharma the learned counsel for the petitioner is that the disputed land is not an agricultural land, but in fact is 'abadi' land. This land has been converted for residential and commercial purposes. Part of the land measuring 907 Sq. yd. has been so converted by order of the District Collector dated 30.03.1988 and remaining subsequently by further order dated 9.5.1988. It has been argued that the S.D.O. erred in law in refusing to entertain the prayer of appointment of Court Commissioner 1 on a wrong premise that such course cannot be adopted prior to recording of the evidence and that this would amount to collection of evidence through Commissioner. 5. The Board of Revenue has also erred in law in rejecting the revision petition and upholding that order. It is further argued that land in dispute does 1 not fall within the meaning of holding as defined in Section 2(1) of the Rajasthan Tenancy Act. All that the petitioner wants is to prove that the disputed land is not an agricultural land and if this can be ascertained by deputing the Court Commissioner, it would obviate the necessity of recording evidence. It was also argued that the appointment of the Commissioner would in no way work to the prejudice of the respondents. Copies of Khasra Girdhawari Samwat 2051 were also cited to show that the land, in dispute is recorded as `abadi' land. 6. It was also argued that the appointment of the Commissioner would in no way work to the prejudice of the respondents. Copies of Khasra Girdhawari Samwat 2051 were also cited to show that the land, in dispute is recorded as `abadi' land. 6. Learned counsel for the petitioner in support of his argument has placed reliance on the decisions of the Hon'ble Supreme Court in the case of Smt. Sarifabibi Mohmed Ibrahim and Others v. Commissioner of Income Tax, Gujarat, reported in AIR 1993 S.C. Page 2585 and Payai Achuthan v. Chamballikundu Harijan Fisheries Development Co-operative Society and others, reported in AIR 1996 Kerala Page 276 . 7. On the other hand, Shri R.K. Agrawal, learned counsel appearing for the plaintiff-respondent No.3 opposed the writ petition and argued that the Order 26 Rule 9 of the C.P.C. can be resorted to only for local investigation. As per provision of Order 26 Rule 9 of the C.P.C., this can be resorted to only for the purpose of elucidating any matter in dispute. That stage can arrive only after some evidence is recorded. It was argued that whether or not the disputed land is an agricultural land or whether it is actually being used for residential or commercial purpose shall have to be proved by the plaintiff by leading evidence. 8. Shri R.K. Agrawal, learned counsel for the respondent no.3 also cited Rule 67 of the General Rules (Civil), 1986 and argued that the said Rule is 4 applicable to all the Courts within the State of Rajasthan. This rule provides that no point, which can conveniently and ought to, be substantiated by the parties by evidence at the trial shall be referred to the Commissioner. He also cited the judgments of this Court in the case of Union of India and Another v. M/s. Kripal Industries Raisingh Nagar, reported in 1998 (2) WLC 4 (Raj.) 396 in which, this Court while referring to Rules 67 of the General Rules (Civil) 1986 which differed with the view taken by the Kerala High Court as well as Orissa and Punjab High Courts on that basis. 9. He also cited the judgment of a co-ordinate Bench of this court in Ram Kishan Taparia v. Shyam Lal & Ors., reported in 2000 WLC (Raj.) UC Page 186 , in which also the view taken in M/s. Kripal Industries Raisingh Nagar (Supra) was reiterated. 9. He also cited the judgment of a co-ordinate Bench of this court in Ram Kishan Taparia v. Shyam Lal & Ors., reported in 2000 WLC (Raj.) UC Page 186 , in which also the view taken in M/s. Kripal Industries Raisingh Nagar (Supra) was reiterated. It was argued that the impugned orders do not suffer from any such error apparent on the face of record, which may be described as an error apparent on the face of the record. No interference, therefore, can be made by this Court in the scope of writ of certiorari under Article 227 of the Constitution of India. 10. He further argued that Khasra Girdawari (Annexure-8) relied upon by the petitioner itself in column no. 3 thereof refer to the nature of the land as irrigated. 11. I have given my thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the material on record. 12. On perusal of the order passed by the SDO, I find that he declined to accept the prayer of the petitioner for appointing the Court Commissioner by observing that according to the provisions of Order 26 Rule 9 C.P.C., appointment of the Commissioner could be made only after the evidence of the parties have been adduced and not at the stage of commencement of the evidence. The SDO observed that the petitioner has although asserted that he has got part of the disputed land converted for non-agricultural purpose, but so far it has not been proved as to which part of the land has been converted and it is located on which side of it. 13. Question whether the disputed land or the part of the disputed land and if it is a part, which of its part is actually being put to non-agricultural use, is essentially a question of fact. If according to what the petitioner asserts that part of the land has been put to the commercial use of construction of slaps, that question can be proved by leading evidence including the question as to on which side of the Khasra number concerned it is located. If according to what the petitioner asserts that part of the land has been put to the commercial use of construction of slaps, that question can be proved by leading evidence including the question as to on which side of the Khasra number concerned it is located. When according to the petitioner himself, there exist orders passed by the District Collector on 30.3.1988 and thereafter on 9.5.1988 converting the disputed land for commercial and residential purposes and the entry made in the revenue ,records, there is no reason to presume that this disputed fact can not be otherwise proved except only by way of local inspection. 14. Tenor of the impugned order passed by the Courts below shows that the request for appointment of the Court Commissioner has been declined only because such request was made at the very out set when proceedings of the suit had just commenced and not at the appropriate time. The SDO in his order held that if after recording of evidence the Court requires the elucidation or any matter in dispute at that stage, such request can than be considered but not at the initial stage itself. The Board of Revenue has also in its order concurred with the same view. 15. In the present case, therefore, as it appears from the impugned orders, no final view has been taken by the trial Court because the evidence has yet to be adduced by the plaintiff. Issues are yet to be framed by the Court and in all probability, issue with regard to nature of the land shall be framed as one of the significant issues and may even be tried as a preliminary issue. 16. So far as the judgment of the Supreme Court in the case of Sarifabibi Mohmed Ibrahim and others v. Commissioner of Income-tax, Gujarat (supra) is concerned, in that case their Lordships while deciding the main matter, also held that the question whether or not the land in question is agricultural land is essentially a question of fact and that question has to be answered in each case having regard to the facts and circumstances of that case. Observations though were made by the Supreme Court in the context on that case but nevertheless they apply as well to the present case. Whether or not disputed land is an agricultural land is indeed a question of fact. Observations though were made by the Supreme Court in the context on that case but nevertheless they apply as well to the present case. Whether or not disputed land is an agricultural land is indeed a question of fact. This judgment, therefore, does not offer any assistance to the petitioner, in so far as the controversy in the present case is concerned. View taken by the Kerala High Court has rightly been distinguished by this Court in M/s. Kripal Industries (supra) because that view was taken in a situation where there was no rule like rule 67 (Supra) available in that case. 17. Rule 67 of the General Rules (Civil) 1986, is-reproduced as under : 67. Particulars to be given in the order for local investigation- 1 When issuing a commission for making a local investigation under Order 26, Rule 9 , the court shall define the points on which the Commissioner has to report. No point which can conveniently and ought to be substantiated by the parties by evidence at the trial shall be referred to the Commissioner. 18. A Co-ordinate Bench of this Court in the case of Union of India & Another v. M/s. Kripal Industries Raisingh Nagar (supra) considered the aforesaid rule vis-a-vis the law on interpretation of Order 9 Rule 26, C.P.C., Lald down by the Hon'ble Supreme Court in the cases of Mukhtiar Singh v. Tej Kaur, reported in 1978 (1) Rent Law Reporter (P&H) Page 294 , Mahendra Nath v. Pumanand, reported in AIR 1988 Orissa Page 248 , John v. Kamrunnisa, reported in AIR 1989 Kerala Page 78 and Sanku Ranga Rao v. Devi Prasad Sahu, reported in AIR 1989 Orissa Page 21 . It was held that though the trial Court by virtue of provisions contained in Order 26 Rule 9 C.P.C. is vested with the discretion to appoint Commissioner, but such discretion should not be exercised when the point which is required to be referred to the Commissioner can conveniently be substantiated by the parties by evidence at the trial. The Court observed that the rule 67 of the General Rules (Civil), 1986 explains the scope of Order 26 Rule 9 C.P.C. and in the cases decided by High Courts of Orissa, Punjab & Haryana and Kerala, there was no such rule and the ratio of those cases would not be therefore applicable. 19. The Court observed that the rule 67 of the General Rules (Civil), 1986 explains the scope of Order 26 Rule 9 C.P.C. and in the cases decided by High Courts of Orissa, Punjab & Haryana and Kerala, there was no such rule and the ratio of those cases would not be therefore applicable. 19. Similar view was expressed by another co-ordinate Bench in Ram Kishan Taparia v. Shyam Lal & Ors., (supra) while relying upon the above referred judgment in Union of India & Another v. M/s. Kripal Industries, Raisingh Nagar (supra). It was held that appointment of commissioner for making inquiry about the fact of possession of property in dispute was improper as the same can be adjudicated upon by framing issues and recording evidence. It was further held that the purpose of appointment of commissioner is not to collect the evidence, which is basically duty of the party to lead the evidence. 20. In the facts and circumstances of the case, I do not find any good 4 reason to take a view other than one which has been taken by the co-ordinate benches in Union of India & another v. M/s. Kripal Industries Raisingh Nagar (supra) and Ram Kishan Taparia v. Shyam Lal & Ors., (supra). 21. Upshot of the aforesaid discussions is that I do not find any such illegality in the orders passed either by the SDO or the Board of Revenue as 4 may be described error apparent on the face of the record so as to warrant interference by this Court in exercise of its power of writ of certiorari. 22. The writ petition being devoid of merits is hereby dismissed though no order as to costs.Writ Petition Dismissed. *******