Jugeshwar Singh and Another vs Rijhan Singh and Others

Courtney-Terrell, C.J.—This is a first, appeal against the final decree in a partition suit, the appellants objecting to the takhtas which have been allotted to them by the order of the Subordinate Judge. Having regard to the frequency with which appeals from final decrees come to us, it is desirable that the principles upon which such appeals must be heard should be restated with emphasis.

The Subordinate Judge when he makes the final decree) considers, first, the report of the Commissioner; the Commissioner has been to the spot, has heard the contentions of the parties and the evidence which the parties produced before him and then to the best of his ability directed the partition by metes and bounds, taking into consideration the element of compactness, the element of equality, the nature of the land to be divided and many other circumstances which ho must take into account and then submits his report to the Sub-ordinate Judge. It is then open to any party, who is dissatisfied with the takhta allotted, to ask the Subordinate Judge to disregard the report of the Commissioner; and the Subordinate Judge again reviews the facts and corrects the award of the Commissioner.

Therefore a first appeal to this Court from the order of the Subordinate Judge is really in the nature of a second appeal in which only questions of law and principle can be considered. It is quite impossible for the Court to go down to the area in question, inspect the land, hear the various objectors and in fact review the decision of the Commissioner on fact.

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 as a first appellate decision on fact. The High Court should only interfere when it is shown that the Judge in his decision has gone wrong on some question of principle in making the final allotment and in drawing up the decree, and I think much money and trouble would be saved to parties to partition suits if they realised that principle and they would in the majority of cases refrain from coming before the High Court in an attempt to upset the allocation of the takhta.

In this particular case before us, the appellants notwithstanding that they were ably represented could not indicate that any mistake in principle was made by the Subordinate Judge and the learned advocate on their behalf was driven to an attempt to induce us to review the findings of fact which had been arrived at before the Commissioner and to re-divide certain parts of the land and award to the parties takhtas other than those they have already received.

In this attempt he was bound to fail, and the appeal must accordingly be dismissed with costs, which we assess at five gold mohurs to be divided equally between the contesting parties, that is to say, half to the party represented by Mr. Bose and half to the party represented by Messrs. B.N. Rai and B. Misra.

Chatterji, J.

I agree.