Damayanti Tarei And Others vs Kailash Tarei And Other

A.C. Behera, J

This Civil Miscellaneous Petition under Article 227 of the Constitution of India, 1950 has been filed by the petitioners against the Opposite Parties praying for quashing(setting aside) an order dated 07.01.2019 (Annexure-1) passed in C.S.No.43 of 2013(F.D.) by the learned Senior Civil Judge, Balasore.

The petitioners and the Opposite Parties in this Civil Miscellaneous Petition are the defendants and plaintiffs respectively in the suit vide C.S. No.43 of 2013(F.D.) pending in the court of learned Senior Civil Judge, Balasore.

The factual backgrounds of this Civil Miscellaneous Petition, which prompted the petitioners/defendants for filing of the same is that, after the preliminary decree passed in the suit for partition vide C.S. No.43 of 2013, final decree proceeding thereof under Order-20, Rule-18 of the C.P.C., 1908 was started.

In that final decree proceeding, a civil court Amin commissioner was appointed for division of the suit properties in accordance with the preliminary decree passed in the suit.

The appointed civil court Amin commissioner submitted report, partition map and allotment sheets on dated 14.11.2017 in the said final decree proceeding, to which, the petitioners/defendants objected under the following two grounds by filing a petition on dated 30.07.2018, i.e., :-

(i) an excess area of 900 sq. links (those are not in possession of the parties) have been illegally allotted in favour of the plaintiffs and

(ii) the defendants(petitioners) have not been allotted sufficient space in the report and map prepared by the survey knowing Amin commissioner for their use as road to reach the public road.

The plaintiffs objected to the said petition dated 30.07.2018 of the defendants stating in their objection that, the report of the survey knowing Amin commissioner is in no way contrary to the preliminary decree passed in the suit, for which, the petition dated 30.07.2018 of the defendants is not entertainable under law.

On the basis of the aforesaid petition dated 30.07.2018 of the defendants and the objection against the same by the plaintiffs, an enquiry was conducted by the learned Senior Civil Judge, Balasore and in such enquiry, the survey knowing Amin commissioner was examined by the court and he was also cross-examined by the parties including the defendants.

After hearing from both the sides and taking the evidence of the survey knowing Amin commissioner into consideration, as per impugned order dated 07.01.2019, the learned Senior Civil Judge, Balasore rejected to the petition dated 30.07.2018 of the defendants assigning the reasons that,

“there is no illegality or infirmity in the report, partition map and allotment sheets etc. prepared by the survey knowing Amin commissioner. For which, the learned Senior Civil Judge, Balasore accepted to the said report, partition map and allotment sheets etc., (those were submitted by the survey knowing Amin commissioner on dated 14.11.2017) and formed the said report, partition map and allotment sheets etc. as the part of the final decree proceeding and directed the plaintiffs to file stamp papers for preparation of final decree.”

On being aggrieved with the aforesaid order, i.e., to the rejection of the petition dated 30.07.2018 of the defendants passed on dated 07.01.2019 by the learned Senior Civil Judge, Balasore in C.S. No.43 of 2013(F.D.), the defendants challenged the same by filing this Civil Miscellaneous Petition under Article 227 of the Constitution of India, 1950 being the petitioners against the plaintiffs arraying them(plaintiffs) as Opposite Parties.

I have already heard from the learned counsels of both the sides.

As per the rival submissions of the learned counsels of both the sides, the crux of this Civil Miscellaneous Petition is that, whether the impugned order dated 07.01.2019 passed in the suit vide C.S. No.43 of 2013(F.D.) by the learned Senior Civil Judge, Balasore accepting the report, partition map and allotment sheets etc. of the survey knowing Amin commissioner after rejecting the petition dated 30.07.2018 of the defendants/petitioners is sustainable under law?

It is the settled propositions of law that, “in a suit for partition, if the court thinks that, partition and separate possession cannot be conveniently made without further enquiry, pass preliminary decree declaring rights of the parties and giving the directions as per requirements of law.

Thereafter, survey knowing Amin commissioner is appointed in the subsequent proceeding, i.e., in the final decree proceeding under Order-26, Rule-14 of the C.P.C. and on the basis of the report of the survey knowing Amin commissioner, final decree is to be passed under Order-26, Rule-14(3) of the C.P.C., 1908 and possession of such property can be taken by executing such final decree in terms of Order-21, Rule-35 of the C.P.C.”

The requirements under law for the acceptance of the report, partition map and allotment sheets etc. submitted by the survey knowing Amin commissioner has already been clarified in the ratio of the following decisions:-

(i) In a case between Kantaru Sahu and others vrs. Dharma Sahu and others : reported in 56(1983) CLT-152 that, after submission of commissioner report, even though, the same is not challenged by any of the parties, the said report is not binding on the court.

When, the parties filed no objection against the report of the survey knowing commissioner, the Court can accept such report of the commissioner, but, that acceptance by itself does not preclude the parties from challenging the same by cross-examining the commissioner and providing documents to nullify the report of the commissioner or to place material from the report itself for providing that, the same cannot be relied upon.

(ii) In a case between Surya Prakash Tiwari and three others vrs. Smt. Shanti Devi and ten others : reported in 2016(4) Civil Court Cases-429(Allahabad) that, the court issuing commission has to be satisfied with regard to the proceedings of Commissioner.

Objections are to be invited from the parties. After hearing the objections of the parties, the court has to record its satisfaction. Court may confirm the report or may direct for further inquiry, if the court is not satisfied with the proceedings of the Commissioner, it is well within the jurisdiction of the court to reject the report, map and other documents prepared by the Commissioner.

So far as the sustainability of the 1st ground raised by the defendants in their petition dated 30.07.2018 to reject the report, map and allotment sheets of the commissioner, i.e., an excess area of 900 sq. links (those are not in possession of the plaintiffs) have been illegally allotted in favour of the plaintiffs is concerned, the learned Senior Civil Judge, Balasore has rejected to the aforesaid ground of the defendants assigning the reasons that, “the reported and evidence of the commissioner is going to show that, the said excess area, i.e., 900 sq. links marked as „R‟ in the partition map was/is in possession of the plaintiffs and nothing has been elicited from the mouth of the commissioner through cross-examination by the defendants to discard the same. As the said excess area, i.e., 900 sq. links was/is under the possession of the plaintiffs, for which, the same has been allotted properly by the survey knowing Amin commissioner in favour of the plaintiffs.”

So far as the sustainability of the 2nd ground raised by the defendants in their petition dated 30.07.2018 to reject the report, partition map and allotment sheets of the commissioner, i.e., they(defendants) have not been allotted with sufficient space to use as road in order to reach the public road is concerned, the learned Senior Civil Judge, Balasore has rejected to the above 2nd ground of defendants assigning the reasons that, “the survey knowing Amin commissioner has deposed in his evidence on the basis of his report, partition map and allotment sheets that, the house of the plaintiffs is situated on the northern portion of their allotted land, which is adjacent to the public road, for which, their frontage has become wider than the defendants, as their allotted house is adjacent to the road and the said road is in the northern side of their house. The defendants have also road facility in the eastern side of their allotted land and the said road is much specious.”

The law relating to the procedures for the allotment of the land by the survey knowing Amin commissioner in the final decree proceeding in a suit for partition has already been clarified in the ratio of the following decisions:-

(i) In a case between Nutbehari Das vrs. Nanilal Das and others : reported in AIR 1937 Privy Council-61 that, land built upon by co-sharer should be allotted to him, if it is not impossible.

(ii) In a case between Baldev Singh. vrs. Darshani Devi and others : reported in AIR 1993 Himachal Pradesh-141 that, a co-sharer is in possession of specific portion of the property, the said property is to be allotted to him.

(iii) In a case between Jadunath Naik and others vrs. Bipra Charan Naik : reported in AIR 1974 Orissa-145 that, if one co- sharer erects building on land, it is generally allotted to him and other co-owners get owelty, but, this principle has no application, when other co-owner has no sufficient land to build upon.

Here, in this matter at hand, when as per the impugned order dated 07.01.2019, the learned Senior Civil Judge, Balasore has accepted to the report, partition map and allotment sheets etc. dated 14.11.2017 prepared by the survey knowing Amin commissioner in the final decree of the suit for partition vide C.S. No.43 of 2013 after being fully satisfied with the correctness thereof on appreciation of the said report, partition map, allotment sheets and evidence of the commissioner assigning the proper reasons as narrated above, then at this juncture, in view of the principles of law enunciated in the ratio of the aforesaid decisions, the impugned order dated 07.01.2019 passed by the learned Senior Civil Judge, Balasore in C.S. No.43 of 2013(F.D.) for the rejection of the petition dated 30.07.2018 of the defendants cannot be held as erroneous.

For which, the question of interfering with the same through this Civil Miscellaneous Petition filed by the petitioners exercising supervisory jurisdiction under Article-227 of the Constitution of India, 1950 does not arise.

Therefore, there is no merit in this Civil Miscellaneous Petition filed by the petitioners(defendants). The same must fail.

In result, this Civil Miscellaneous Petition filed by the petitioners(defendants) is dismissed on contest.

As such, this Civil Miscellaneous Petition filed by the petitioners((defendants in the suit vide C.S. No.43 of 2013) is disposed of finally.