Sm. Ambika Bhawani Devi vs Sm. Gouri Kumari Devi

This is an appeal by the defendant against the final decree passed in partition Suit No. 5 of 1942 by the learned first Subordinate Judge of Gaya. The main grievance of the appellant is that she had raised certain objections to the Commissioner''s report and takhtabandi, which have not been considered by the learned Subordinate Judge who has passed the final decree on the basis of the Commissioner''s report and takhtabandi. It is, therefore, necessary to consider the objections raised by the appellant to the Commissioner''s report and takhtabandi, and examine if these objections have been disposed of by the learned Subordinate Judge without any consideration. It is well settled that 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, unless some question of principle in making the final allotment and drawing up the decree is involved: see the observations made in Jugeshwar Singh v. Rijban Singh 17 Pat. 81. Learned Counsel for the appellant has contended before us that the learned Subordinate Judge has failed to consider the objections raised on behalf of the appellant.

I now proceed to consider these objections seriatim. The first objection relates to a room or hall called the "Anta Ghar" which was a part of the residential house of the parties in plot No. 13583. This hall or "Anta Ghar" has been allotted to the respondent. The objection of the appellant is that this hall was in joint possession of the parties before and she should get at least half of this hall. It is further stated by the appellant that this hall was the only "Mardani Baithak" (meaning thereby a room where menfolk can sit) available to her and that the allotment of the entire hall to the respondent has deprived her of a "Mardani Baithak". It appears from Order No. 60, dated 1 6-6-1945, passed by the learned Subordinate Judge that he had asked the present appellant to prepare a map showing in what way she wanted partition to be effected and that the respondent would be given the choice to elect. The learned Subordinate Judge had further offered the appellant a choice to exchange the takhta allotted to her for the takhta allotted to the other side. It appears that the appellant was not agreeable to such an exchange; nor did she file any map showing in what way she wanted partition of the residential house and the appurtenances thereof to be effected. In these circumstances, the learned Subordinate Judge overruled the objections raised on behalf of the appellant without considering them on merits, by his order dated 4-8-1945. We have ourselves considered the objection regarding the "Anta Ghar" on merits, and we find that the allotment made by the Commissioner is, on the whole, the most satisfactory and equitable in the circumstances of the case. The Commissioner has taken into consideration the elements of equality and compactness in making the takhtabandi. He has further taken into consideration the road frontage on two important roads known as the Oldham Road and the Kutchery Road in making the takhtabandi. Learned Counsel for the appellant has contended before us that the "Anta Ghar" was in joint possession of the parties, and at least half of it should be given to his client. The Commissioner has dealt with this matter and has pointed out that if the hall is divided, it will be useless for both parties. There is another difficulty in giving half the "Anta Ghar" to the appellant. It would mean that the respondent would have no access to another plot allotted to her, namely 18540, except from the northwest which would affect the road frontage given to the respondent. The Commissioner has further pointed out that the appellant has got lands to the south, east and north of her residential house in which she can construct any building according to her choice. In view of these considerations, we see no grounds for interference as respects the "Anta Ghar".

The second objection relates to a drain. The appellant stated as follows in a supplementary objection to the Commissioner''s report filed on 1-7-1944:

That the drain of the residential house allotted to the defendant flows and joins the Municipal drain in the Kutchery Road on the west, the level of the Municipal drain on the Kutchery Road being lower than that of the courtyard of the petitioner''s residential house. There being no opening on the Kutchery Road allotted to the defendant, it will not be possible for the defendant to join this drain to the Municipal drain on the Kutchery cross road (Kanya Pathsala Road) inasmuch as the level of the Municipal drain on the said road on the south is higher than the level of the courtyard of the residential house of this defendant.

On behalf of the respondent it was stated that in fact the drain for the outlet of refuse water and rain water from the residential house of the defendant flowed towards the south. It was further stated by the respondent that the level of the southern road was not higher, and that there would be no difficulty in connecting the drain with the road towards the south. Therefore, the facts which were being averred by the parties were contradictory of one another. The Commissioner appears to have disposed of this objection by the short statement that "some alteration will have to be made after partition, and the objection with regard to the drain is not very material." It is not clear from the Commissioner''s report if there is already a?drain flowing towards the west which carries the water of the residential house allotted to the appellant. The claim of the appellant is that there is such a drain, which should be left joint between the parties. We are of the opinion that this objection cannot be disposed of in a summary way, as has been done by the Commissioner. The learned Subordinate Judge must now consider this objection on merits, and decide if there is a drain flowing towards the west which carries the water from the residential house allotted to the appellant, and in case such a drain exists, whether it should be left joint between the parties.

The third objection is regarding plot No. 13545. This plot has been kept joint inasmuch as there was some dispute between the parties over it. It is contended before us that the dispute has now ended, and this plot should also be divided half and half between the parties. As the case is going back on remand to the learned Subordinate Judge, he will take into consideration this objection also, namely, regarding plot No. 13545. If the dispute regarding this plot has ended and if the parties are entitled to partition thereof, then this plot can be divided half and half without in any way affecting the other allotments made by the Commissioner.

The fourth objection is regarding two plots, 13576 and 13574. The Commissioner, it appears, has given the whole of plot No. 13574 to the appellant, and a small part of 18576 to her. The appellant wants that both these plots should be divided half and half. This is a matter which has been dealt with by the Commissioner very satisfactorily on the principles of equality, compactness and road frontage. In our opinion, no grounds have been made out for interference with the allotments made by the Commissioner in respect of these two plots.

The fifth objection is about the two plots, 13539 and 13536. These are mutharfa and mukarrari lands for which rent is payable to the landlords. The annual rent payable for plot No. 13536, which has been allotted to the appellant, was taken to be Rs. 19-11-0 whereas the rent payable for 13589 allotted to the respondent was taken to be Rs. 16-15-0. It has been contended on behalf of the appellant that as a result of some litigation the rent for 18586 has been reduced to Rs. 6 only. This is a point which requires further consideration and the learned Subordinate Judge will consider this objection. If the rent for plot No. 13536 has been reduced, as is contended by the appellant, it would be necessary to make good the loss and equalise the assets as between the parties. Lastly, it has been contended before us that the Commissioner should be asked to give the actual measurement of the road frontage allotted to each party and also the area of the minjumla plots. The takhtabandi khasra at p. 25 of the paper-book prepared by the Commissioner gives the area of all minjumla plots. The Commissioner should be asked also to specify in actual measurement the road frontage allotted to each party so that the parties may know what road frontage has been given to them, and there may be no confusion about the matter in future,

The result, therefore, is that the appeal is allowed to the extent indicated above. The decree of the learned Subordinate Judge is set aside, and the case must now go back on remand to the learned Subordinate Judge for a consideration of such of the objections as we have indicated in the preceding paragraphs. The learned Subordinate Judge will ask the Commissioner for a further report on such points as may be necessary to dispose of the objections which have now to be considered by the learned Subordinate Judge, and then pass a final decree in accordance with law. In the circumstances, the parties will bear their own costs of the hearing of the appeal in this Court. Further costs to be incurred in the Court below, if any, will be dealt with by the learned Subordinate Judge.