Chandrakala Shah & Anr. vs Bishnu Kumar Shah & Ors.

Instant appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as ‘the Code’) is preferred by the appellants assailing the correctness, legality and judicial propriety of the impugned judgment and decree dated 22^nd June, 2026 directed by the learned 3^rd Additional District Judge, Balasore in connection with RFA No.184 of 2022 reversing the decision of the learned 1^st Additional Senior Civil Judge, Balasore dated 11^th May, 2022 in C.S. No.214 of 2011 (FD) on the grounds stated.

The factual matrix of the case is that one Rameswar Lal Shah was the common ancestor and he had two sons, namely, Jagdish Prasad and Gokul Chand and three daughters. Said Gokul Chand died in 1991 leaving behind three sons, namely, Ramesh Chandra Shah (plaintiff), Bishnu Kumar Shah (defendant No.1) and Pradeep Kumar Shah (predecessor of defendant Nos.2 to 4) and five daughters, namely, defendant Nos.5 to 9. The suit schedule property admeasuring to Ac.3.039 dec. in M.S. Khata No.68 (Mutation Khata No.259/755) situate in Mouza-Bagbrundaban, P.S. Town Unit No.15 in the district of Balasore. It is not in dispute that the schedule property was allotted jointly through the branch of Gokul Chand in an earlier partition suit (T.S. No.126 of 1998-I). In so far as the present suit is concerned, it has been instituted by the original plaintiff in C.S. No.214/11(FD) seeking partition of the schedule property by metes and bounds and permanent injunction. The suit was decreed against defendant No.8 and ex parte vis-a-vis other defendants but without cost declaring 1/4^th share each in his favour, defendant No.1, and defendant Nos.2 to 4 jointly and allocating 1/20 share each to defendant Nos.5 to 9 further directing to effect partition as per the shares indicated within a period of three months and in case of failure, either of the parties shall have liberty to effect such partition through the process of Court. In fact, except defendant No.8, others remained ex parte and as a result and consequent upon a preliminary decree, the Court of First Instance declared entitled shares among all. Upon disposal of the suit, the original plaintiff moved an application to make the preliminary decree as final during and in course of which a Survey Knowing Commissioner was appointed and deputed to measure the suit schedule property and to submit a report with allotment sheet besides sketch map which was received on 6^th April, 2022. In absence of any objection received against the Commissioner’s report, the learned 1^st Additional Senior Civil Judge, Balasore accepted the same and drawn up the final decree on 11^th May, 2022. Against the decree, RFA No.184 of 2022 was filed by defendant No.1 which was disposed of by the learned 3^rd Additional District Judge, Balasore by judgment dated 22^nd June, 2024 and set aside the final decree with the matter remitted back for a division of the suit schedule property afresh by deputing a Survey Knowing Commissioner, who shall effect partition of the suit schedule property in consonance with the preliminary decree and while effecting such partition, the Commissioner shall take into consideration the valuation of the property, location of the same and considering the equity and conveyance of the parties with a direction to the Court of First Instance to complete the exercise within three months of receipt of the record along with the copy of the judgment in order to avoid further delay and for the parties to appear before it on 10^th July, 2024 to receive further orders and that apart, to issue a fresh notice to respondent No.9, who was set ex parte in the appeal. The aforesaid decision of the learned Court below is under challenge at the behest of the appellants, who have been substituted on the death of the original plaintiff on the grounds pleaded on record.

This Court by order dated 31^st August, 2024 formulated the following substantial question of law, such as:

Recorded the submissions received on behalf of the respective parties.

According to the appellants and in view of the submissions of appellant No.1(a) appearing in person, the final decree is only a confirmation of the administrative and ministerial act of physical partition carried out by the Commission and therefore, the learned Court below should not have interfered with the same. It is pleaded that the Commissioner’s report was received and it was acted upon by the Court of First Instance, the fact, which failed to be appreciated by the learned Lower Appellate Court, inasmuch as, when such a report was prepared and could not be found fault with. As per the appellants, the learned Court below ought not to have set aside the Commissioner’s report for the reasons stated especially when no objection was received to the same at any point of time. It is alleged that the defaulted respondents are guilty of dishonesty for their deliberate non-appearance before the Court of First Instance and it could not be noticed by the learned Court below especially when respondent Nos.1 to 6 failed to participate in the trial and also at the time of division of properties. It is also pleaded that respondent No.1 was bound to file an appeal against the preliminary decree challenging the correctness of the same, but since it was passed ex parte, he had a recourse to file an application under Order 9 Rule 13 of the Code and clearly, therefore, neither, he nor respondent No.6 can be allowed to challenge the final decree when deliberately chosen to remain absent and as a result, the final decree was passed accepting the Commissioner’s report. The plea of the appellants is that the learned Court below erred in holding that law does not prescribe any embargo in challenging the Commissioner’s report for the first time in appeal, even if, the same was not objected to before the Court of First Instance. It has been contended that the learned Lower Appellate Court could not have allowed the respondents to disturb the decree in appeal since deliberately absented themselves before the lower Court as they ought to have considered the fact that a preliminary decree has already determined the rights of the parties and the same is only to be confirmed in the final decree. It is contended that the rights of the parties have been determined and settled under the preliminary decree followed by the Commissioner’s report under Order 20 Rule 18(2) of the Code which has only confirmed the final decree subject to objections. The further contention is that the final decree challenged on the ground of improper allotment with valuation of the schedule property is not open to challenge in appeal since such report merges with the final decree which is nothing but confirmation of the ministerial act conclusively determining the rights of the parties.

Referring to a decision in Parvathamma Vrs. A. Muniyappa AIR 1997 Karnataka 370, it is pleaded that when the appeal is not filed against the preliminary decree, the rights determined therein have become final and conclusive and cannot be questioned thereafter. A reference is made to Order 26 Rule 14 of the Code regarding the procedure for the Commissioner to follow to effect partition when such an exercise has been undertaken and report was received with no objection filed to the same, as contended, it was not right and justified on the part of the Lower Appellate Court to receive evidence on valuation of the schedule property to claim that there has been no proper allocation, inasmuch as, there is a gross error in insisting upon valuation to form the basis of physical partition. Another decision in Heir of Barot Dansang Hirji and others Vrs. Barot Kanji Hirji and others AIR 1998 Gujarat 27 is relied on to plead that it is only when the property is either not available for partition or the property is not partible, the determination of value is required to be made and therefore, the learned Lower Appellate Court ought not to have interfered with the final decree for unequal distribution of the suit schedule property among the parties for improper valuation. Lastly, it is alleged that the Commissioner’s report could not have been tinkered with and set aside when it was received by the Court of First Instance followed by a final decree by the Lower Appellate Court accepting the plea of respondents that it was not within their knowledge and consent. With such other facts pleaded on record, the appellants claimed that the impugned judgment and decree in RFA No.184 of 2022 is liable to be set aside confirming the final decree drawn up by the learned 1^st Additional Senior Civil Judge, Balasore in C.S. No.214 of 2011(FD).

On the contrary, Mr. Mishra, learned counsel for respondent No.1 would submit that the Commissioner’s report is unacceptable since improper allocation has been made when the same is not based on equitable valuation of the suit schedule property and hence, the learned Court below was not at wrong or committed any illegality in rejecting the Commissioner’s report and directing a fresh exercise for its division in accordance with law. It is submitted that the appellants are the successors of the original plaintiff and respondent No.1 was arrayed as defendant No.1 in the suit. Referring to the genealogy, it is submitted that respondent No.1 is the brother of the original plaintiff; respondent Nos.5 to 9 are his sisters, whereas, respondent No.2 is the wife of the predeceased brother of the original plaintiff. As to respondent Nos. 3 & 4, it is stated that both were defendant Nos.3 & 4 respectively in the suit and are the sons of the predeceased brother of respondent No.2. According to Mr. Mishra, learned counsel, the appeal is maintainable in terms of Section 97 of the Code and hence, the learned Lower Appellate Court considered the legality of the final decree with reference to the Commissioner’s report. It is contended that the correctness of the preliminary decree is not questioned, rather, the challenge herein involves questioning the acceptability of the report of the Commissioner deputed by the Court of First Instance to effect partition during final decree proceeding and legality thereof. It is submitted that the appeal was disposed of setting aside the final decree dated 19^th May, 2022 with the matter remitted back to depute a Survey Knowing Commissioner once again to carry out the division of the properties considering its valuation, position, equity and convenience of the parties. The maintainability of the appeal under Section 100 read with Order 41 Rule 1 of the Code is also questioned by Mr. Mishra, learned counsel for respondent No.1 on the ground that there has been no decree in RFA No.184 of 2022 instead an appeal should have been preferred by the appellants in terms of Order 43 Rule 1(u) thereof. Furthermore, it is contended that respondent No.1 was absent during the final decree proceeding and hence, could not file any objection to the Commissioner’s report but for such non-filing, the challenge to the same and the final decree in an appeal under Section 97 of the Code cannot be said to have been waived. In fact, the contention is that there is no prohibition to raise any objection to the report of the Survey Knowing Commissioner at the appellate stage. According to Mr. Mishra, learned counsel, the crucial point involved in the appeal is that whether the Commissioner’s report and consequential final decree is in conformity with Order 26 Rules 13 & 14 of the Code and the submission is that on a conjoint reading of the said provisions, it would show that a Commissioner is to allot the respective shares in terms of rights decided under a preliminary decree and a Court after receiving a report from him either confirm or vary or set it aside and in the case at hand, the Commissioner while effecting partition has not prepared any valuation report and is also completely silent about any such assessment made on valuation of the schedule property and its allotment. It has been the contention that the Commissioner, by virtue of allotment sheet, has failed to effect equal distribution of the properties based on valuation. Rather, it is alleged that the Commissioner allotted valuable and the compact land to the appellants in comparison to inconvenient, backside and scattered lands of lesser value to respondent No.1 which is clearly evident from the allotment map prepared by him and hence, the benchmark valuation was referred to by the learned Lower Appellate Court. Mr. Mishra, learned counsel would submit that even though the benchmark valuation of the suit schedule property was obtained by respondent No.1 from the office of the District Sub-Registrar, Balasore, it was not accepted by the learned Lower Appellate Court as additional evidence, however, having regard to the law, considered such valuation directing equitable distribution of the properties between both the sides. A reference is made to a decision in Abdul Rasheed & others Vrs. Abdul Jabbar and others 2018 SCC OnLine Mad 14367 by Mr. Mishra, learned counsel to submit that since there has been no allotment of the properties made considering the location, valuation etc. including the accessibility and convenience of the parties, the learned Court below did not err in rejecting the Commissioner’s report directing fresh allocation to be held. It is also stated that in the decision (supra), a remand at the appellate stage was considered necessary with deputation of an Amin Commissioner afresh. Further referring to a decision of the Apex Court in Jaichand (Dead) through LRs & others Vrs. Sahnulal & another 2024 SCC Online SC 3864, Mr. Mishra, learned counsel submits that the jurisdiction under Section 100 of the Code to reevaluate the evidence and findings of the fact by the First Appellate Court is beyond the scope of a second appeal unless there are legal infirmity and perversity. With the submissions as above, Mr. Mishra, learned counsel pleads that the appeal is sans merit, hence, liable to be dismissed.

Whether confirmation of a preliminary decree in the final decree proceeding is an administrative and ministerial act for the physical division of the properties to be carried out by the Commissioner? Since such is the plea of the appellants, this Court is constrained to hold that the final decree is a judicial act, not a mere administrative exercise and hence, the Commissioner’s report must have to be handled not only area-wise division but also on the basis of the valuation of the properties to ensure an equitable partition. A final decree is a conclusive determination of the rights of the parties and certainly a judicial act, whereby, the actual physical division and allocation is made and therefore, the Court shall have to apply its judicial mind to evaluate the Commissioner’s report with or without objection and to pass a formal order. While it requires administrative steps to be taken up later but a decree itself is a decision of a Court, hence, to claim that such an exercise after a preliminary decree is merely an administrative act is misconceived. A Commissioner’s primary job is to make the necessary physical division of the shares defined in the preliminary decree and therefore, cannot just look at the area but must consider the location, valuation, convenience of the parties etc. For instance, if a plot is divided in area-wise, one is having a huge commercial prospect but the other is not, the division is definitely unequal. The Commissioner must therefore assess the quality, utility, market value and commercial potential of the properties to be divided pursuant to the shares defined by a Court in a preliminary decree. According to the Court, if a property cannot be divided perfectly by value due to its physical layout, the Commissioner in such a situation, shall have to recommend that the party receiving higher value land after division, to pay owelty to the other to maintain equity. The report of a Commissioner is, therefore, to deal with all such aspects at the time of physical division of the properties on the basis of a preliminary decree. It is not just a formality that a Commissioner is to divide the property area-wise without considering the valuation of the shares allocated to the parties on account of such division. No doubt, shares are defined in a preliminary decree but to act upon the same, a proper division/allocation is necessary and therefore, the assistance of a Survey Knowing Commissioner is sought for. The decision of a Commissioner for the purpose of equal distribution of properties is recommendatory in nature which means a Court is to consider whether the report received from him truly reflects a division based on equitable distribution of shares. A Court may or may not accept the report and recommendations therein and therefore, shall have to independently examine acceptability of the same and cannot simply be a rubber stamp or blindly to act upon it even if no objections are filed especially when a genuine dispute arises regarding the valuation and division of the shares. In fact, Order 26 Rules 13 & 14 of the Code underscores the need for equitable division of the properties and the duty of a Court to deal with the same.

A Court-appointed Commissioner acts in a ministerial or administrative capacity to assist the Court and any such report received from him is treated as evidence and even in complete absence of objections to the same, a Court is not legally bound by such report. A Court under Order 26 Rule 14(2) of the Code is required to hear the parties before confirming, varying or setting aside the report. If a party points out a manifest mathematical error, unfair valuation methods or an inequitable division during and in course of hearing, the Court cannot ignore it simply because formal objections have not been received. The acceptance of a flawed report without considering latent disparity violates the entire exercise. When a dispute arises because the properties cannot be divided equally by metes and bounds which obviously does not mean a division area-wise only. Due to the value differences, the Court has specific remedies and under Order 26 Rule 1 of the Code, it can direct the parties receiving the more valuable portion to pay monetary compensation (owelty) to the other side receiving a less valued share, the purpose being to ensure equalization of shares. Even under certain circumstances, if the valuation needs physical partition completely impracticable, a Court may allow the shareholders to buy out others at the valuation determined with an adjudication thereon or may even order a public sale/auction to distribute the proceeds equitably. In other words, many options lie with the Court even after receiving a report of the Commissioner and rejecting the same to go for an internal sale and also a public auction, if it is really expedient in the interest of justice and to give effect to the preliminary decree.

In the case at hand, the Commissioner’s report did not have the valuation sheet and merely reflects the division of shares area-wise. Admittedly, no objection was received to the Commissioner’s report and was accepted by the Court of First Instance. Except for respondent No.1, others were absent and the suit was decreed. The Commissioner’s report was not examined with reference to the valuation of the properties which is not in dispute either. According to the Court, even in appeal before the Lower Appellate Court, such an objection could have been entertained. Mere absence of objection received to the report of the Commissioner for the default of any of the parties cannot ipso facto be a ground to deny the plea of any of the parties alleging unequal distribution of the properties on the basis of location, valuation etc. The role of a Court is not obviated while considering acceptability of a Commissioner’s report, when there is no objection. As earlier stated, a Court cannot simply act upon or blindly accept a Commissioner’s report merely because no formal objection was filed. In the considered view of the Court, upon receiving the report of a Commissioner, a Court cannot be a mute spectator and to approach the same without proper examination and whether the same is in consonance with a proper division of shares in terms of the preliminary decree. In a partition suit, a preliminary decree determines the shares of the parties, while the final decree actualizes the physical division of the same by metes and bounds and hence, even if a party failed to object to any such report of the Commissioner, the Court is legally obligated to exercise judicial application of mind to ensure that the valuation and division are equitable, lawful and aligned with the preliminary decree. At the cost of repetition, it is held that the reports of a Commissioner are not binding to the Courts. The Apex Court in M.P. Rajya Tilhan Utpadak Sahakari Sangh Maryadit, Panchama, District Sehore and others Vrs. Modi Transport Service (2022) 14 SCC 345 clarified that a Commissioner’s report is non-adjudicatory in nature and it is merely an opinion or piece of evidence to assist the Court. It does mean that just because a party failed to file objection, the report of the Commissioner stands proved or accepted straightaway and, hence, the Court must independently verify that the physical division and valuation is fair enough and in accordance with preliminary decree.

In case where a situation arises subsequent to the receipt of a Commissioner’s report and it is alleged either before the Court or in course of an appeal filed against the final decree that there has been wrong valuation or improper distribution of shares, the following are the options available, such as, the party aggrieved thereby may file an application under Order 26 Rule 10(3) of the Code requesting the Court to reject or remit the report back to the Commissioner due to specific valuation issues; summon and cross-examine the Commissioner in terms of Rule 10(2) of the Code; if the property cannot be split perfectly according to the exact shares due to physical constraints or to avoid monetary compensation, to balance the financial disparity; if the properties are entirely not capable of physical division based on its valuation, may direct an internal auction for public sale so that the proceeds thereof can be divided fairly. Such an exercise is permissible even before a Court of Appeal. A Court of Appeal is a Court of fact and law. So, any such objection to the Commissioner’s report at the time when the appeal is filed, even at the appellate stage, may be considered to effect a partition by metes and bounds necessarily with reference to the location and its valuation and also considering the convenience of the parties keeping in view that such partition is required to be held to ensure equitable distribution of shares defined. At this juncture, this Court is inclined to refer to a decision of the Apex Court in Harbans Lal Vrs. Jagmohan Saran AIR 1986 SC 302, wherein, the Apex Court held that unless a Court formally considers the valuation or division of properties and applies its mind to the report received from the Commissioner and any such report achieves no absolute finality. Thus, it can be said that the report is non-adjudicatory just a recommendation of the Commissioner, to which, a Court is to apply its judicial mind to accept or otherwise, the primary aim and objective is to ensure that the division takes place fairly and on inequitable terms. The objection to any minor technical or factual calculation errors cannot be challenged at the appellate stage but where there has been valuation error or inequitable division among the parties, the same is susceptible to review by the Court of Appeal to ensure that the decree in terms of the shares defined has been allocated and adjusted with its equitable distribution.

Having discussed this far, the argument advanced from the side of the appellants that the learned Lower Appellate Court erred in rejecting the Commission’s report even in absence of objections from any of the respondents, hence, is illegal and cannot be countenanced. Of course, an objection to a Commissioner’s report plays a vital role and is again to assist the Court to find out the flaw therein and the purpose is to ensure that there is a proper division of properties. The detailed procedure has been prescribed for a Commissioner under Order 26 Rule 14 of the Code and according to Sub-Section (1) thereof, he shall have to divide the property and allot shares to the parties to which objections were invited and at least, the Court either confirms or varies any such reports before considering a final decree being drawn up in accordance with the shares defined. To reiterate, a mere division by area is not synonymous with suitable partition. As rightly pointed out by Mr. Mishra, learned counsel that equality in partition must be tested with reference to value, utility, location accessibility and convenience which is also settled position of law and therefore, under such circumstances, the duty and responsibility of a Commissioner assumes a lot of significance to ensure that there is equitable distribution of the properties, otherwise, it would defeat the purpose and objective of Order 26 Rule 14 of the Code. Admittedly, herein, the Commissioner’s report lacks the assessment on the basis of valuation while making division of the properties, which is in complete breach of the mandatory obligation under Order 26 Rules 13 & 14 of the Code. The aforesaid provision is not directory in nature, as according to Mr. Mishra, learned counsel, to which, the Court is inclined to hold that its compliance is the very object of Rule 14 of Order 26 of the Code and the purpose is to serve and ensure equitable distribution of properties among the parties and since the Commissioner’s report received by the Court of First Instance did not deal with the same, it was rightly raised at the stage of appeal. In Abdul Rasheed (supra), the Madras High Court held that such an exercise to achieve equitable distribution in a partition suit, objections may be raised to the Commissioner’s report even at the appellate stage though the parties failed to avail such an opportunity during trial. In the above decision, objection at the appellate stage was accepted and the matter was remanded back directing deputation of a Commissioner afresh. If there is a likelihood of inequitable distribution of properties accepting a Commissioner’s report on the premise that no objection was received by the Court of First Instance, it would amount to unfair and inequitable distribution of shares and the same could not have been allowed by the Lower Appellate Court to perpetuate the wrong and hence, the remand, which, in the considered view of the Court, is perfectly justified and in accordance with law. Such other grounds pleaded by the appellants and even objection to the maintainability of the appeal from the side of respondent No.1 are left undetermined for the reason that the very exercise for a fresh division/allotment of shares among the parties followed by a remand by the learned Court below is found to be justified with a direction to accomplish such an exercise within a stipulated period to give effect to the partition of the properties in consonance with the preliminary decree and by metes and bounds.

Accordingly, it is ordered.

In the result, the appeal stands dismissed, however, with a direction to the learned 1^st Additional Senior Civil Judge, Balasore to expedite the exercise and to dispose of the final decree proceeding in C.S. No.214 of 2011 (FD) in the light of the directions issued in RFA No.184 of 2022 by the learned 3^rd Additional District Judge, Balasore at the earliest preferably with eight weeks from the date of receipt of a copy of this judgment keeping in view the discussions held and observations made hereinabove.

In the circumstances, however, the parties are to bear their respective costs.