Civil Procedure Code, 1908 – Order 26 Rule 13 – final decree for partition – Procedure of Commissioner.
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.