Civil Procedure Code, 1908 – Order 26 Rule 13 – final decree for partition – Procedure of Commissioner.
# Final Decree
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K.M.JOSEPH AND M.L.JOSEPH FRANCIS JJ.
Dated this the 25th day of August, 2011
R.F.A. No. 620 of 2008
For Petitioner : R.D.Shenoy (Sr.); For Respondent : T.G. Rajendran
J U D G M E N T
Joseph Francis J.,
This appeal is filed by respondents 1 to 3 in I.A. No. 894 of 2002 in O.S. No.510 of 1994 on the file of Additional Sub Court, Irinjalakuda. I.A. No. 894 of 2002 is a petition filed by the plaintiffs in O.S. No. 510 of 1994 for passing a final decree in accordance with the preliminary decree passed in that suit.
2. In O.S. No.510 of 1994 a preliminary decree for partition was passed on 21.12.2001 as follows:
a. the plaint schedule properties have to be divided into 8 shares by metes and bounds.
b. the plaintiffs have to be allotted with 5/8 shares.
c. the plaintiffs are also entitled to get mesne profits from the plaint schedule properties from the date of suit till realisation with costs.
d. the quantum of mesne profits will be decided at the time of passing final decree.
e. Costs will come out from the estate.
f. Suit adjourned sine die.
3. The plaintiffs filed I.A. No.894 of 2002 for passing a final decree in accordance with the preliminary decree and to partition the plaint schedule properties by deputing an advocate commissioner with the help of Village Officer. The Sub Court appointed an advocate commissioner to partition the plaint schedule properties with the help of Taluk Surveyor. The Advocate commissioner filed Ext.C1 report and Exts.C2 to C8 plans after measuring out the properties with the help of Taluk surveyor. Since no objection was filed by any of the parties to that report and plans, the learned Sub Judge passed a final decree for partition on 29.2.2008 on accepting the report and plans as follows: Exts.C1 to C8 are accepted in toto and a final decree was passed as follows:
(1). The portion marked as ‘A’ in Exts.C2 is set apart to the share of the petitioners/ plaintiffs.
(2). The portion marked as ‘C’ in Ext.C8 sketch is alloted to the share of the plaintiffs/ petitioners.
(3). The properties shown in Ext.C3 sketch is also alloted to the plaintiffs/ petitioners. The properties shown in Ext.C6 sketch is also allotted towards the share of the plaintiffs/ petitioners.
(4). The properties allotted to the petitioners were shown in a seperate schedule attached to Ext.C1.
(5). The petitioners are also entitled to get Rs.1,58,845/- from the defendants 1 to 3 and the properties allotted to them have a charge for that amount.
(6). The petitioners are also entitled to get Rs.77,263/- (Rs.1,23,620 x 5) towards the profit for 8 years.
(7). The shares allotted to the defendants 1 to 3 are seperately shown in a schedule attached to Ext.C1 report.
(8). Ext.C1 to C8 will form part of the decree.
4. Against that final judgment and decree, defendants 1 to 3 who are respondents 1 to 3 in I.A. No. 894 of 2002 filed this appeal.
5. Heard the learned senior counsel for the appellants and learned counsel for the contesting respondents.
6. Learned senior counsel for the appellants submitted that the Court below did not consider the objections filed by the appellants with regard to the allotment of shares suggested by the Advocate commissioner and did not give the appellants an opportunity to substantiate their objections to the commission report and plans. The learned senior counsel for the appellants submitted that the commissioner has not given any reason for not giving any share to the third defendant in the plaint A schedule properties and that the lesser value is shown to the properties alloted to the plaintiffs, whereas the higher value is assessed for the properties allotted to the appellants. The learned senior counsel for the appellants invited our attention to the decision reported in
# Gourhari Das and another v. Jaharlal Seal and another, AIR 1957 Calcutta 90
in which it was held that:
“When Commissioner is appointed under Rule 13 of Order 26 Civil P.C., he is to consider the claims made by the contesting parties and such evidence as is produced before him. He has to come to his decision for being placed before the Judge. It will not be proper for the Commissioner to act formally as an arbitration in a matter where the parties are unable to come to any agreement.”
7. Learned senior counsel for the appellants invited our attention to para 10 of the decision reported in
# Om Prakash v. Ved Parkash and others, AIR 2000 Himachal Pradesh 45
which reads as follows:
“Under Order 26, Code of Civil Procedure, Local Commissioners are appointed for different purposes and the procedure prescribed for that is also differently provided. The appointment of Local Commissioner for partition of immovable property after the passing of a preliminary decree is governed by Rule 13 of Order 26, Rule 14 of the said Order lays down the procedure to be follows by the Local Commissioner, Rule 14 reads:
# Procedure of Commissioner
(1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorised thereto by the said order, award sums to be paid for the purpose of equalising the value of the shares.
(2) The commissioner shall then prepare and sign a report or the commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the Court and the Court, after hearing any objections which the parties may make to the report or reports shall confirm, vary or set aside the same.
(3) Where the Court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the Court set aside the report or reports it shall either issue a new commission or make such other order as it shall think fit.”.
8. Learned senior counsel for the appellants invited our attention to the chapter XI of “Mitras Co-ownership and Partition” with regard to the duties of Advocate Commissioner while effecting partition of the property. Learned counsel for the plaintiffs supported the final decree and judgment of the Court below.
9. On perusing the lower court records, it seen that I.A. No.894 of 2002 final decree application was filed by the plaintiffs on 6.4.2002 and no seperate commission application was filed for effecting partition. In I.A. No.894 of 2002 there is a prayer to allot 5/8 shares of the plaintiffs over the plaint schedule properties and to partition that properties with the help of the Village Officer. On 16.8.2002 the Sub Court appointed an advocate commissioner to divide the properties and the advocate commissioner partitioned the plaint schedule properties with the help of the Taluk Surveyor and filed Ext.C1 report and Exts.C2 to C8 plans on 19.10.2002. The filing of the commission report and plans was taken note of by the Sub Court on 21.10.2002 and the case was posted to 29.10.2002 for filing objections, if any to the Commission report. On 29.10.2002 the case was posted to 8.11.2022 for objections to the Commission Report. On 8.11.2002 there was no sitting and the case was posted to 10.12.2002. On 10.12.2002 it was noted by the Sub Court that no objection was filed and the Advocate for respondents 1 to 3 submitted that a stay is granted by this Court from passing final decree and the case was posted to 20.1.2003 for production of the stay order. On 20.1.2003 the stay order was produced.
10. As per the order in C.M.P. No.4755 of 2002 in A.S. No. 382 of 2002 of this Court dated 19.1.2002, there was an interim stay of passing of final decree. A.S. No. 382 of 2002 was an appeal filed by defendants 1 to 3 in O.S. No. 510 of 2004 before this Court against the preliminary decree and judgment. In the appeal memorandum in R.F.A. No. 620 of 2008, it is stated by the appellants that A.S. No.382 of 2002 filed by them before this Court was dismissed on 17.2.2008 confirming the preliminary decree and judgment and that the appellants sought special leave before the honourable Supreme Court, which was dismissed. The proceeding paper of the Sub Court shows that on 20.2.2008 the final decree proceedings which was originally posted to 26.5.2008 was advanced to 20.2.2008 as per the order in I.A. No.710 of 2008 and the plaintiffs/ petitioners had no objection to the commission report and the case was posted to 27.2.2008 for objection of the respondents to the commission report. On 27.2.2002 objections to the commissioner report was not filed and the case was heard in part and posted the case to 29.2.2008 for further hearing. On 29.2.2008 the case was finally heard and the final judgment was pronounced on that day. Learned senior counsel for appellants produced a copy of I.A. No.888 of 2008 filed before the Sub Court on 28.2.2008 to set aside the commission report and plans. But that I.A. is not seen along with the Lower Court records. The proceeding paper will not show that the appellants brought to the notice of Sub Court regarding filing of that petition when the Sub Court passed the final judgment on 29.2.2008 after hearing. Even though the commission report filed on 19.10.2002 and several chances were given to the appellants for filing objection to the commission report and they did not file any objection till 28.2.2008, the learned Sub Judge cannot be blamed for not considering the objections. Therefore it cannot be said that sufficient opportunity was not given to the appellants for filing objection to the commission report.
11. In the appeal memorandum under ground (D), the appellants have given a chart regarding the allotment made as per the final decree based on commission report and plans as follows:
Item Sch- Extent Survey No. Nature of land Party to whom property No. edule as allotted per Plaint
1 A 3 Acres 386 Dry land 188.3 cents-plaintiffs 6 cents 5/8 share 75.3 cents- D1’s share 37.7 cents-D2’s share 04.7 cents-pathway to plaintiffs (No allotment for D3)
2 B 44 cents 437/2 Nilam 44 cents-allotted to the share of defendants jointly Item Sch- Extent Survey No. Nature of land Party to whom property No. edule as allotted per Plaint C 35.5 cents 443/1-3 Nilam 35.5 cents- allotted to the 3 share of defendants jointly. D 28.77 cents 443/3 Nilam 28.77 cents-allotted to the 4 share of defendants jointly.
5 E 76.97 cents 443/3 Dry land 47.39 cents – allotted plaintiffs’ 5/8 shares 28.44 cents – allotted to the share of defendants jointly.
6 F 19.62 cents 439/3 Dry land 19.62 cents – allotted plaintiff’s 5/8 share
7 & 8 G & H 1 Acre 387/1 Reclaimed 1 Acre 21.5 cents – allotted 21.5 cents 388/1 land plaintiffs’ 5/8 share 9 I 48.2 cents Nilam 48.2 cents – allotted 444 plaintiffs’ 5/8 share a) Towards owelty a sum of Rs.1,58,845/- was allowed to plaintiffs from defendants 1 to 3 b) Towards mesne profits a sum of Rs.77,263/- was allowed to plaintiffs from defendants 1 to 3.
12. The main grievance of the appellants is that no share was allotted to the third appellant/third defendant from the plaint A schedule property. According to the appellants, plaint A schedule property is having a total extent of 3 acres and 6 cents and out of which 188.3 cents is allotted to the share of 5/8 shares of plaintiffs and 4.7 cents is allotted to them as pathway as per the final decree. In Ext.C2 plan with regard to plaint A schedule property, share of plaintiffs having an extent of 188.3 cents is shown as plot ‘A’ and the pathway having an extent of 4.7 cents is shown as ‘C’ plot. 75.3 cents allotted to the defendants 1 to 3 jointly is shown as ‘B’ plot and 37.7 cents allotted to the share of defendants 1 to 3 jointly is shown as plot ‘D’. In Ext.C1 commission report, it is not stated that 75.3 cents (‘B’ plot in Ext.C2 plan) is allotted to the share of first defendant alone. It is also not stated that plot ‘D’ in Ext.C2 plan having an extent of 37.7 cents is allotted to the share of second defendant alone. On a perusal of Ext.C1 report, it is evident that plots ‘B’ and ‘D’ in Ext.C2 plan having a total extent of 113 cents is jointly allotted to the share of defendants 1 to 3. The total extent of plaint A schedule property is 3 acres and 6 cents and there are 8 shares and calculating on that basis, each sharer is entitled to get about 38 cents from plaint A schedule property. Calculating on that basis, the plaintiffs are jointly entitled to get about 190 cents towards their 5/8 share in the plaint A schedule property. As per Ext.C2 plan, the plaintiffs are jointly allotted with 192 cents including the pathway. As per the above calculation, defendants 1 to 3 are jointly entitled to get 114 cents from plaint A schedule property. As per Ext.C2 plan, defendants 1 to 3 are jointly allotted with about 113 cents as plot ‘B’ and ‘D’ together. Since defendants 1 to 3 are jointly allotted with 113 cents from plaint A schedule property as per Ext.C2 plan, it cannot be said that the allotment of shares to defendants 1 to 3 in plaint A schedule property is unjust or inequitable. With regard to the allotment of shares from other plaint schedule properties, we cannot see any reason to interfere with the allotment made to the plaintiffs and defendants. Since defendants 1 to 3 have not paid necessary court fee for allotting their separate shares, the Commissioner has not allotted their separate shares. The defendants 1 to 3 are at liberty to apply for partition of their separate shares after remitting necessary court fee with regard to the properties jointly allotted to them as per the final decree.
13. Therefore, we are of the view that the learned Sub Judge is fully justified in passing a final decree for partition on accepting Ext.C1 report and Exts.C2 to C8 plans. Accordingly, this appeal is dismissed without costs, confirming the final judgment and decree.