Ugra Narain Choudhary and Others vs Hariband Choudhary and Others

Das, J.—The only question that arises before us is whether the question should have been delegated to the Commissioner for decision. The question arose in a partition suit between the parties, and the defendants in the written statement contended that the zerait lands in the village have been privately partitioned and that the plaintiffs and defendants 1 to 4 settled certain bakasht lands with tenants which should be treated as zerait and given to their patti. Now this was the specific point raised by the defendants. The learned Subordinate Judge framed an issue on this point which is in these words:

In case the partition is allowed should the lands in respect of which the plaintiffs and defendants 1 to 4 get entire rent be treated as zerait lands for the purpose of partition and be given to their patti as such.?

Now the learned Subordinate Judge in his preliminary judgment did not decide this point. His decision on issue 4 runs as follows:

There is not full evidence on this point and the Commissioner who shall be appointed in this case shall try this issue after taking necessary evidence, and come to a clear finding on this point.

He added "I leave this question open at present." The decree which wag drawn up on this judgment is in these terms:

It is ordered and decreed that a preliminary decree for partition be passed. The disputed share including the zerait therein shall be divided proportionately amongst all the parties, and the Commissioner shall determine the question raised in issue of the suit at the time of effecting partition.

Now it has been pointed out over and over again by this Court and by other Courts that a Judge cannot delegate any of his functions to a Commissioner. The issue raised in issue 4 was an issue which had to be decided by the learned Subordinate Judge himself and, in my opinion he was entirely wrong in asking the Commissioner to take evidence and to try the issue. In point of form the did not entirely divest himself of his responsibility in the matter, for he reserved to himself to try the question on receipt of the Commissioner''s report; but in substance he divested himself of all responsibility in the matter. When the case went to the Commissioner he took evidence on issue 4, and it appears that the plaintiffs, who are the appellants before us, did not object to the Commissioner trying the issue.

On the other hand they led evidence on issue 4. The Commissioner came to the conclusion that the lands in respect of which the point is now being argued before us were the bakasht lands which were in the possession of the plaintiffs and that they had in fact inducted tenants upon the lands. When the report of the Commissioner came to the Subordinate Judge he affirmed that report.

Mr. Shiveshwar Dayal now contends before us that the Subordinate Judge had no jurisdiction to refer the question involved in issue 4 to a Commissioner and that accordingly the finding of the Commissioner must be wholly rejected by us and that we should ask the learned Subordinate Jndge to try this point. But the plaintiffs did not appeal from the preliminary decree passed by the learned Subordinate Judge and Section 97, Civil P.C., provides that

when any party aggrieved by a preliminary decree passed after the commencement of this code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.

It is ingeniously argued before us by Mr. Shiveshwar Dayal that the question is one of jurisdiction and therefore there is no option in this Court but to entirely ignore the Commissioner''s report on this point; but the difficulty raised in Section 97 of the Code still remains, and in any case I would be reluctant to act in the matter since the plaintiffs were entirely satisfied with the preliminary decree passed by the learned Subordinate Judge and actually led evidence on this point before the Commissioner. They certainly took the chance of succeeding before the Commissioner and the question is whether having failed they should be allowed to take a point of this nature. In my opinion Section 97 precludes them from raising this point in this Court.

The only other point is whether the learned Subordinate Judge properly considered the finding of the Commissioner on this point. I have no reason to take the view that he did not consider it. His judgment on this point is no doubt very short, but that does not show that he did not consider the matter as carefully as we expect him to consider.

The result is that this appeal fails and must be dismissed with costs.

Allanson, J.

I agree.