AI Structured Summary
Not yet generated for this judgment
Judgment
Heard learned counsel for the appellant as well as learned counsel for the respondents.
The present first appeal has been preferred under Section 96 of the Code of Civil Procedure, 1908 (hereinafter referred to as ‘C.P.C.’) against the order and final decree dated 02.12.2019 and 02.01.2020 respectively passed by the Court of learned Sub Judge-X, Bhagalpur (hereinafter referred to as ‘Trial Court’) in Title Suit No.456 of 2015, whereby the learned Trial Court confirmed the report of Survey Knowing Pleader Commissioner (in short ‘Pleader Commissioner’) appointed in pursuance of the order contained in the preliminary decree in the Suit dated 30.04.2019 and decreed that properties specified in the said report be allowed to the party concerned. It is further ordered that the report of the pleader commissioner alongwith the map shall form part of the final decree and rejected the objection petition filed by the plaintiff-appellant against the report dated 06.11.2019 submitted by the Survey Knowing Pleader Commissioner and accepted the said report, directing the parties to take steps for preparation of the final decree.
The brief facts of this case are that the plaintiff-appellant instituted Title Suit No.456 of 2015 seeking partition of his share (i.e ½ in the suit property) in the homestead, parti land described in Schedule-A of the plaint, situated at Mohalla-Kharmanchak, D.N. Singh Road, Bhagalpur, measuring an area of 0.0587 hectare, corresponding to about 6,316 square feet, appertaining to Survey Khata No. 294 and Khesra No. 395 K, KHA, G and GHA. The suit was allowed on admission vide order dated 10.04.2019 under Order XII Rule 6 of the C.P.C., and it was declared that the plaintiff got ½ (half) share in the property mentioned in Schedule-A of the plaint. A preliminary decree dated 30.04.2019 was drawn as per the plaint. Pursuant to the preliminary decree, a Pleader Commissioner was appointed vide order dated 01.08.2019 for carving out the respective shares of the parties. The Pleader Commissioner initially submitted his report on 02.09.2019. Thereafter, upon objection raised by the plaintiff-appellant, the Pleader Commissioner was directed on 16.10.2019 to submit a fresh report and to carve out the pattis in accordance with the shares declared under the preliminary decree, keeping in view the valuation of the suit property. A fresh report was accordingly submitted by Pleader Commissioner on 06.11.2019. The valuation report of Pleader Commissioner was also filed on 13.11.2019. The plaintiff thereafter filed an objection petition on 20.11.2019 to the said report.
It is pleaded in the plaint that the plaintiff-appellant and the defendants are predecessor in interest, and are governed by the Dayabhaga School of Hindu law and Nadendra Nath Bagchi (his wife predeceased him) was the Karta of his Hindu Bengali family, consisting of two sons namely, Gunendra Nath Bagchi and Saurendra Nath Bagchi. The plaintiff-appellant is the legal heir of his deceased father Saurendra Nath Bagchi and defendants are the legal heirs of Late Gunendra Nath Bagchi and of Nilima Devi, the deceased wife of Gunendra Nath Bagchi. Narendra Nath Bagchi held and possessed the homestead land with pucca house on the suit land.
The defendant nos.1&2 admitted the aforesaid facts and also prayed to separate the defendants’ share in the suit property as in accordance with law.
Sourav Kumar Singh (respondent no.3 herein) has been impleaded as intervenor-defendant vide order dated 12.12.2018 by the learned Trial Court. He has stated that defendant nos.1&2 who have ½ (half) share in the suit property executed a registered power of attorney dated 10.04.2018 to him and on that basis he is holding the ownership of the land on behalf of the defendants.
The learned Trial Court, by the impugned order dated 02.12.2019, rejected the objection petition, inter alia, on the ground that the same was neither verified by the plaintiff nor supported by an affidavit and that no specific disputed point had been raised therein. The learned Trial Court further observed that, on physical verification, an area of about 6,000 square feet was found partitionable and that a two-storeyed residential building was standing over the portion in possession of the plaintiff-appellant, which could conveniently be allotted to him. The learned Trial Court also observed that the three-storeyed building shown in the portion of the defendants was an illegal construction and was not a part of the partition suit, and therefore its valuation could not be taken into consideration for the purpose of partition. The report dated 06.11.2019 was accordingly accepted and the parties were directed to take steps for preparation of the final decree. Thereafter, the final decree dated 02.01.2020 was prepared in terms of the Pleader Commissioner’s report and map, which were made part of the final decree. Aggrieved by the aforesaid order and final decree dated 02.12.2019 and 02.01.2020 respectively, the present appeal has been preferred by the plaintiff-appellant.
Learned counsel for the appellant submitted that the learned Trial Court has committed an error in law in mechanically accepting the report dated 06.11.2019 submitted by the Pleader Commissioner and in rejecting the objection raised by the appellant. It is submitted that the Pleader Commissioner was required to carve out the respective shares of the parties in terms of the preliminary decree after taking into consideration the valuation of the suit property, however, the valuation of the suit land and building existing on the suit land has not been properly valued. He further pointed out that the Pleader Commissioner also failed to properly deal with the passage forming part of the suit property and did not disclose the means of access and entrance to the constructed portion allotted to the appellant.
Learned counsel for the appellant further submitted that the learned Trial Court failed to consider the specific objections raised by the appellant with regard to the alleged three-storeyed building and other constructions over the suit property. He submitted that the finding of the learned Trial Court that the three-storeyed building was an illegal construction after the first report of the Pleader Commissioner is an erroneous finding. It is also submitted that the appellant was already residing in the existing residential building with his family and that mere division of the land by area, without considering the location, access, nature and value of the constructions, would not result in an equitable partition. It is next submitted that the learned Trial Court would have examined these objections in the light of Order XXVI Rule 14 of the C.P.C. before accepting the Pleader Commissioner’s report.
Learned counsel for the appellant lastly submitted that the objection of the appellant could not have been rejected on the ground that it was not supported by an affidavit or that it did not contain a specific disputed point, particularly when the objections went to the manner in which the Pleader Commissioner’s report had been prepared and the shares were proposed to be carved out. It is submitted that the report was not prepared in conformity with the directions contained in the preliminary decree and the subsequent order of the learned Trial Court, and consequently the final decree founded upon such report is unsustainable. It is, therefore, submitted that the impugned order dated 02.12.2019 and the consequential final decree dated 02.01.2020 be set aside and the matter be remitted for preparation of a fresh report in accordance with law after properly valuing the suit property and constructions and after considering the objections of the parties.
Per contra, learned counsel for the respondents submitted that there is no infirmity in the order dated 02.12.2019 passed by the learned Trial Court accepting the report dated 06.11.2019 submitted by the Pleader Commissioner. It is submitted that the Pleader Commissioner was appointed pursuant to the preliminary decree dated 30.04.2019 and, after the plaintiff-appellant raised objections to the earlier report, the learned Trial Court had specifically directed the Pleader Commissioner to submit a fresh report and carve out the respective pattis in accordance with the shares declared under the preliminary decree, taking into consideration the valuation of the suit property. He submitted that the fresh report was thereafter submitted on 06.11.2019 after physical verification of the suit property. Learned counsel further submitted that the order-sheet of the Pleader Commissioner dated 30.10.2019 reflects the participation of the learned Advocates appearing for both sides, who had put their respective signatures without raising any objection.
Learned counsel for the respondents further submitted that the objections raised by the appellant were rightly rejected by the learned Trial Court as the objection petition was neither verified by the plaintiff-appellant nor supported by an affidavit and, moreover, did not disclose any specific disputed point warranting interference with the Pleader Commissioner’s report. It is submitted that the learned Trial Court, upon consideration of the report and the valuation, found that an area of about 6000 square feet was available for partition and that the two-storeyed residential building standing thereon was in the physical possession of the plaintiff and could conveniently be allotted to him. The three-storeyed building standing in the portion shown towards the defendants was found to be an illegal construction and was not part of the subject matter of the partition, and therefore its valuation was rightly excluded from consideration.
Learned counsel for the respondents thus submitted that the final decree was prepared strictly in accordance with the Pleader Commissioner’s report and map, which were made part of the decree, and that the appellant is essentially seeking to reopen matters which already stood determined in the preliminary decree. It is submitted that no prejudice has been demonstrated by the appellant and that the learned Trial Court, having considered the report and the objections raised thereto, rightly directed preparation of the final decree. It is, accordingly, submitted that the appeal, being devoid of merit, deserves to be dismissed and the order dated 02.12.2019 as well as the final decree dated 02.01.2020 be affirmed.
Having heard learned counsel for the parties and having perused the materials available on record, the point for determination in the present appeal is: “whether the learned Trial Court has committed error in accepting the report of the Survey Knowing Pleader Commissioner?”
It is not in dispute that the preliminary decree dated 30.04.2019 has attained finality and has not been challenged by the plaintiff-appellant. The shares of the parties, therefore, stand conclusively determined and cannot be reopened in the present appeal. The controversy is confined to the subsequent stage of preparation of the final decree and, in particular, to the correctness of the report dated 06.11.2019 submitted by the Survey Knowing Pleader Commissioner and its acceptance by the learned Trial Court. The limited question, therefore, is whether the Pleader Commissioner, while working out the partition, acted in substantial compliance with the preliminary decree and the directions issued by the learned Trial Court.
Regarding acceptance of the report of the Pleader Commissioner, the often quoted decision of Privy Council in the case of Chandan Mull Indra Kumar & Ors. v. Chiman Lal Girdhar Das Parekh & Anr., reported in 1939 SCC OnLine PC 49; AIR 1940 PC 3 relying upon earlier decision of the Judicial Committee reported at 13 M.I.A. 607 may be recalled.
“It has been laid down that interference with the result of a long and careful local investigation except upon clearly defined and sufficient grounds is to be deprecated. It is not safe for a Court to act as an expert and to overrule the elaborate report of a Commissioner whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report, and who had not blindly adopted the assertions of either party.”
The above decision of Privy Council still holds the field and same has been relied by the Courts in India. Moreover, in the case of Jugeshwar Singh v. Rijhan Singh, reported in 1937 SCC OnLine Pat 136; AIR 1938 Patna 104, a Division Bench of this Court has held as follows:
“… The Subordinate Judge when he makes the final decree considers, first, the report of the Commissioner; the Commissioner has been to the spot, has heard the contentions of the parties and the evidence which the parties produced before him and then to the best of his ability directed the partition by metes and bounds, taking into consideration the element of compactness, the element of equality, the nature of the land to be divided and many other circumstances which he must take into account and then submits his report to the Subordinate Judge. It is then open to any party, who is dissatisfied with the takhta allotted, to ask the Subordinate Judge to disregard the report of the Commissioner; and the Subordinate Judge again reviews the facts and corrects the award of the Commissioner. Therefore a first appeal to this Court from the order of the Subordinate Judge is really in the nature of a second appeal in which only questions of law and principle can be considered. It is quite impossible for the Court to go down to the area in question, inspect the land, hear the various objectors and in fact review the decision of the Commissioner on fact. The power to review the decision of the Commissioner on the facts is a matter for the Subordinate Judge, and his view of the facts ought to be final as a first appellate decision on fact. The High Court should only interfere when it is shown that the Judge in his decision has gone wrong on some question of principle in making the final allotment and in drawing up the decree…..”
The Pleader Commissioner was appointed in the instant case by the learned Trial Court and there has been no allegation against him regarding his integrity or carefulness. He was one from the approved list maintained by the learned District Judge and the Pleader Commissioner, in presence of the parties and their respective Advocates, made the local investigation and has submitted the detailed report along with the partition maps.
In the present case, the order dated 16.10.2019 shows that the fresh commission was issued because the earlier report had been prepared according to the area and not according to the valuation of the suit property. The Pleader Commissioner was accordingly directed to carve out the pattis according to the shares declared in the preliminary decree, taking into consideration the valuation of the suit property. A perusal of the fresh report dated 06.11.2019 shows that the Pleader Commissioner undertook local inspection and measurement in the presence of the plaintiff-appellant and the learned Advocates appearing for both sides. He has noticed the existing structures, the physical possession of the parties, the passage and the nature of the different portions of the suit property. He thereafter proposed the western portion for the plaintiff-appellant, where the plaintiff was already residing, and the eastern portion for the defendants. The Pleader Commissioner has further stated that the total measurable area was about 6,000/-square feet and that each party would receive half thereof. Two maps were prepared showing the existing position as well as the proposed division. Thus, the report cannot be said to be a report prepared without local investigation or without reference to the physical features of the property.
The plaintiff-appellant’s principal objection is that the Pleader Commissioner did not separately value the constructions standing over the suit land. However, the report itself records that the two-storeyed residential building was in the physical possession of the plaintiff-appellant and that the plaintiff’s share had been carved out on the western side so as to retain the building with him. The learned Trial Court, while considering the objection, also noticed that the said building could conveniently be allotted to the plaintiff-appellant. The mere fact that the Pleader Commissioner did not separately assign a monetary value to every structure cannot, in the facts of the present case, be treated as sufficient to invalidate the entire exercise, particularly when the plaintiff-appellant has been allotted the portion in his existing possession and the preliminary decree determining the shares has attained finality.
As regards the newly constructed three-storeyed building, the Pleader Commissioner has specifically recorded that the same had been constructed after submission of the first report and has described it as an illegal construction. It is also appears from the materials available on record that the three-storeyed building has neither been mentioned in the plaint nor in the pleadings as a suit property. Despite having opportunity to amend the pleading, the same has not been put forth by the plaintiff-appellant before the learned Trial Court. However, the learned Trial Court, upon consideration of the report, has recorded a categorical finding that the said three-storeyed building was not a part of the partition suit and, therefore, its valuation could not be taken into consideration for the purpose of partition. No material has been brought on record before this Court to demonstrate that the said finding is factually incorrect or that the land upon which the said construction stands was, in fact, required to be allotted as part of the suit property in the preliminary decree. The plaintiff-appellant cannot, at the stage of final decree proceedings, seek to enlarge the scope of the property or reopen matters which do not form part of the rights declared under the preliminary decree.
The objection regarding the passage also does not persuade this Court to interfere with the impugned order. The Pleader Commissioner has noticed the existence of a passage towards the southern side and has prepared a map depicting the division of the property. The plaintiff-appellant has not demonstrated that the allotment made by the Pleader Commissioner has rendered his share inaccessible or incapable of being enjoyed. Likewise, the mere difference between the area mentioned in the schedule and the area measured by the Pleader Commissioner, by itself, cannot furnish a ground for rejection of the report when the Pleader Commissioner has explained that the remaining portion may fall towards the road on the southern side. No contrary measurement or material has been placed before this Court to establish that any portion of the suit property has been deliberately excluded from partition.
The submission that the learned Trial Court failed to comply with Order XXVI Rule 14 of the C.P.C. also cannot be accepted in the facts of the present case. The report was placed before the learned Trial Court, the plaintiff-appellant was afforded an opportunity to raise objection thereto and the learned Trial Court considered the objection before accepting the report. The impugned order dated 02.12.2019 records the reasons for rejecting the objection and specifically notices the physical features of the property, the existing two-storeyed building, the three-storeyed construction and the area found upon measurement. The requirement under Order XXVI Rule 14 of the C.P.C. is not that every objection raised by a party must necessarily result in modification of the Pleader Commissioner’s report; what is required is consideration of the objections and a judicial decision as to whether the report should be confirmed, varied or set aside. In the present case, the learned Trial Court has exercised such jurisdiction and has found no merit in the objections.
The Hon’ble Supreme Court in Trinity Infraventures Ltd. & Ors. v. M.S. Murthy & Ors., reported in 2023 SCC OnLine SC 738, has held as under:
“193.As to what should be done in such cases, is provided in Order XXVI Rule 13 of the Code. Order 26 Rule 13 provides that where a preliminary decree for partition has been passed, in any case not covered by Section 54 (and Order XX Rule 18 (1)), the Court should issue Commission to such a person as it thinks fit, to make partition and separation according to the rights as declared in such a decree. The Commissioner so appointed should conduct an enquiry, divide the property into as many shares as may be and allot such shares to the parties, awarding wherever required and authorized, such sums to be paid for the purpose of equalizing the value of the shares, under Order XXVI Rule 14 (1). The Commissioner should then file a report into Court under sub-rule (2) of Rule 14 of Order XXVI. The Court may give an opportunity to the parties to file objections to the report and thereafter confirm, vary or set aside the recommendations made in the report of the Commissioner. After this is done by the Court, a decree should be passed by the Court under Order XXVI Rule 14 (3) of the Code.
194.Therefore, in a case of partition and separate possession not covered by Section 54 of the Code, a preliminary decree is first passed in terms of Order XX Rule 18 (2) of the Code, a Commissioner is appointed in a subsequent proceeding under Order XXVI Rule 13 and on the basis of his report, a final decree is passed under Order XXVI Rule 14 (3) of the Code. Thereafter, the possession of such property, if it is an immovable property, is taken by executing such final decree in terms of Order XXI Rule 35 of the Code.”
The fact that the objection petition was not supported by an affidavit or verification is also not the sole basis upon which the impugned order rests. The learned Trial Court has further found that no specific disputed point had been raised by the plaintiff-appellant and, upon examining the Pleader Commissioner’s report, concluded that the proposed allotment was convenient and consistent with the physical possession of the parties. The plaintiff-appellant has not been able to demonstrate before this Court any specific prejudice occasioned to him by acceptance of the report. The objection appears, in substance, to seek a re-appreciation of the manner of allotment after the shares of the parties had already been conclusively determined by the preliminary decree.
It is a settled principle that the stage of final decree in a partition suit is intended to give effect to the rights declared by the preliminary decree and not to reopen those rights. The preliminary decree in the present case having attained finality, the learned Trial Court was required to work out the partition in accordance with the shares already declared. The Pleader Commissioner undertook local measurement in the presence of the parties and their Advocates, prepared maps showing the proposed division and allotted the western portion to the plaintiff in view of his existing possession of the residential building. The learned Trial Court considered the objections and found the report acceptable. In the absence of any demonstrated violation of the preliminary decree or any material irregularity causing prejudice to the plaintiff-appellant, no ground is made out for interference in this first appeal.
It is pertinent to note that mere disputing the report of the Pleader Commissioner by filing objection cannot be sustained. The learned Trial Court has committed no error in accepting the report of the Pleader Commissioner and rejecting the objection raised by the plaintiff-appellant. Hence, the point for determination in the instant First Appeal No.9 of 2020 is decided against the plaintiff-appellant.
For the reasons recorded aforesaid, this Court finds no infirmity in the order dated 02.12.2019 passed by the learned Sub-Judge-X, Bhagalpur in Title Suit No.456 of 2015 accepting the report dated 06.11.2019 submitted by the Survey Knowing Pleader Commissioner. The consequential final decree dated 02.01.2020 having been prepared in terms of the said report also does not call for interference. The present appeal is, accordingly, dismissed.
Interlocutory Application(s), if any, stands disposed of.
There shall be no order as to costs.