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Judgment
Dhavle, J.—This appeal must succeed. The suit was originally brought for the partition of a whole mauza. It was dismissed by the trial Court on the ground that there has been a previous partition. There was an appeal to the High Court by the plaintiffs who did not challenge the finding that there has been a previous partition, but urged that at any rate they were entitled to a partition of the shamilat lands that admittedly existed. In allowing the appeal Das, J., with whom Adami, J., concurred, observed that the plaintiff did not press this point in the Court of first instance and therefore would not be entitled as a matter of right to succeed in this Court.
The decree of the lower Court was modified, and a partition of such of the shamilat lands as were capable of partition was ordered, and the appellants were ordered to pay the costs of the respondents.
Several years after the appellate decree of this Court, proceedings were taken in the lower Court, and several out of defendants 4 to 15 applied to the pleader-commissioner stating that they had a 12 annas share in one of the shamilat plots. The pleader-commissioner referred the matter to the lower Court, and the order of the lower Court was that the pleader commissioner should proceed with the work according to his view after hearing the parties and that the Court itself would look into the matter if objections were filed against the commissioner''s final report. This meant an entirely unjustifiable delegation of the Court''s duties to the commissioner.
In a partition suit the proper duty of a commissioner is to form and allot takhtas according to the shares of the parties as already admitted or found, and it is entirely outside his duty to decide the shares of the parties, this power being a part of the judicial duty of the Court itself. The commissioner did however as permitted by the lower Court, look into the matter and come to a conclusion in favour of the defendants in question. The plaintiffs, who are the appellants before us, failed to file any objection to the commissioner''s report on the date fixed, and the lower Court accepted the report and decreed the suit finally in terms of that report.
It has been urged on behalf of the appellants that the commissioner''s proceedings, so far as the question of title is concerned, were entirely ultra vires and that they are entitled to a proper pronouncement on that point from the lower Court itself. Mr. Mitra has cited the case of Mt. Saraswati Bahuria Vs. Suraj Narain Chaudhuri, in support of this contention; and the learned advocate for the respondents has endeavoured to distinguish this ruling on the ground that it refers to a case u/s 144, Civil P.C., while the commissioner had the right, it is argued in the present case, under Order 16 Rule 16, C1. (a) to take evidence. It seems to me however that this provision has nothing to do with the question of title of the parties to shares other than those admitted in the pleadings or declared in the preliminary decree.
The result is that the proceedings of the commissioner, so far as the title of the defendants in question to 12 annas share in plot No. 204 is concerned, must be ignored altogether and the order of the lower Court, based as it is on those proceedings, must be set aside. The case will now go back to the lower Court for pronouncing on the disputed title or rather the title of the defendants to the disputed share of 12 annas in plot No. 204 and disposing of the case finally in accordance with law. Parties will be at liberty to adduce such evidence as they may be advised to Coats of the appeal will abide the event.
Saunders, J.
I agree.