Padmanabhan vs Krishnamurthy

R. Banumathi, J.—This revision is directed against the order of II Additional Subordinate Judge, Villupuram, made in I.A. No. 1242 of

2003 in O.S. No. 60 of 1991 dated 28-11-2003, scrapping the earlier report of the Advocate Commissioner and directing the second Defendant

to file a separate petition to appoint an Advocate Commissioner for division of the suit ''A'' Schedule property.

O.S. No. 60 of 1991:- The Plaintiff and Defendants are brothers and sisters. Their father L.Jayaraman died intestate in the year 1970. Their

mother Chandra Bai also died intestate in the year 1986. Their brother Murali also died intestate and unmarried in the year 1983. Claiming

81/378th shares in ''A'' and ''B'' Schedule properties and 1/7th share in the ''C'' Schedule property and to render account of the income, the

Plaintiff has filed O.S. No. 60 of 1991. A preliminary decree for partition was passed in O.S. No. 60 of 1991.

An Advocate Commissioner was appointed to divide the ''A'' Schedule property and the Plaintiff was allotted a share of 81/378 (or) 4.66 acres

in the ''A'' Schedule property. The Commissioner has filed his report allotting an extent of 3.46 acres worth Rs. 1,90,200/- in items 4, 32, 33, 38,

9 and 10.While so allotting the above extent, the Commissioner had taken into consideration the actual possession of the items of properties by the

parties, valuation of the properties and such other aspects.

I.A. No. 1242 of 2003: The second Defendant has filed this application raising objection as to the allotment of 4.04 1/2 acres as against

entitlement of 3.46 acres. Objecting to the allotment of one electric motor pump set, the second Defendant has filed this Application for scrapping

the report of the Advocate Commissioner on the ground of unfair distribution.

Objecting to the Application, the Plaintiff has filed the counter statement contending that the mode of allotment of the property suggested by the

Commissioner is fair without affecting the possession of the other parties. The Commissioner has taken note of the value of the land and the access

to the land and other aspects. The petition has been filed to scrap the Commissioner''s Report and to appoint another Advocate Commissioner

only to delay the allotment of the lawful legitimate share to the Plaintiff.

Upon consideration of the contentions of both parties, the learned Subordinate Judge allowed the application scrapping the earlier Report. The

lower Court was of the view that in the interest of justice one more chance is to be given to the Petitioner/second Defendant to file a petition to

appoint fresh Advocate Commissioner to inspect the suit property and to allot the share to the parties in accordance with the preliminary decree.

The learned Subordinate Judge was also of the view that appointment of fresh Advocate Commissioner would in no way prejudice the

Respondent.

Aggrieved over the impugned order scrapping the earlier report of the Advocate Commissioner, the Plaintiff has preferred this Revision Petition.

The learned counsel for the Revision Petitioner has contended that the Commissioner has taken into consideration the value of the land, possession

of the parties and such other aspects. It is submitted that without recording any reasons the order of scrapping the report is unsustainable.

Contending that the trial Court has committed a serious error in scrapping the Report without any valid grounds, the learned counsel urged for

setting aside the impugned order. In support of his contention that Report of the second Advocate Commissioner cannot be scrapped without

recording the reasons, the learned counsel has relied upon the Division Bench decision of the Kerala High Court reported in AIR 1986 KER 83

(Swami Pramananda v. Swami Yogananda)

The learned counsel for the Respondent submitted that in view of excess allotment of the property by the Advocate Commissioner, the trial

Court rightly scrapped the Report and the impugned order warrants no interference.

Whether the Court below was right in scrapping the Report and directing the Petitioner/second Defendant to file a fresh Petition and Whether

the impugned order scrapping the earlier Report of the Advocate Commissioner suffers from serious error, are the main points that arise for

consideration in this Revision.

In O.S. No. 60 of 1991, the Plaintiff was allotted 81/378th shares. Total extent of the lands to be divided is around 16.16 acres. The

Plaintiff''s share is about 3.46 acres. At the time when the Commissioner has inspected the spot, the Commissioner has noted the crops:-

Items 2,3, 29 to 33 Sugarcane

Items 4, 11 to 15, 16 to 23, 34 and 36 Paddy

Items 4 and 36 Plantain

Items 34 and 35 Brinjal

(Panchamadevi Limits)

The house sites and building portions are comprised in suit item Nos. 24 to 27. In suit item No. 24, the Commissioner has noted the location of

Post Office, in which, the First Respondent is the Post Master. The other house portion is comprised in suit item Nos. 25 to 27. Taking into

consideration the possession of the parties (elaborately in the Commissioner''s Report) and considering the indivisible nature of house site and

house portions, the Commissioner has suggested that the Plaintiff may be allotted the following items of land viz., suit item Nos. 4, 32, 33, 38, 9

and 10. The cumulative extent of these items comes to about 4.04 1/2 acres and whereas if extent wise division is effected he would get an extent

of only 3.46 acres. Thus as per the Commissioner''s Report:-

Entitlement Allotment

3.46 acres 4.04 1/2 acres

Valuation

Rs.2,65,671/- Rs.1,90,200/-

The Commissioner has noted, since the Plaintiff was not given any share in the house sites or house portions, in his view, that the above allotment is

a balanced one, not only on the basis of the value of the properties, but also on the ground of convenient and peaceful mode of enjoyment of the

same by the respective parties.

It was at that stage, the Application has been filed by the second Defendant to scrap the Report on the ground that there is no fair allotment

and the portion allotted to the Plaintiff is unfair. The trial Court also allowed the Application and scrapped the Report filed by the Advocate

Commissioner and also giving opportunity to the Second Defendant to file a separate Petition to appoint Advocate Commissioner with schedule of

property.

Even at the outset, it is to be pointed out that the approach of the Trial Court is perverse. The Report was filed in the application filed by the

Plaintiff to effectuate partition; but that Report has been scrapped. Not only that, the second Defendant was directed to file a separate Petition to

appoint Advocate Commissioner with Schedule of property. It passes one''s comprehension, if any such application is filed by the second

Defendant, as to how the Plaintiff share could be worked out. The impugned order cannot be sustained on this score alone.

Be that as it may. Time and again, it has been held that mere lapse in Report cannot be a ground for appointment of second Commissioner.

The Court has got discretion to appoint second Commissioner depending upon the facts and circumstances of the case before it. But before

scrapping the earlier report, the Court should record its reasons in writing, as to why the the first Commissioner''s Report should be scrapped. The

learned Subordinate Judge has not recorded any grounds for scrapping the report of the first Advocate Commissioner.

In a decision reported in (1985) I M.L.J. 254 (R. Viswanathan v. P. Shanmugham and Anr.), this Court has held thus:-

The trial Court has got power under Or.26, R. 10(3) C.P.C. for appointment of fresh advocate -Commissioner on recording finding that the

proceedings and the report of the earlier commission are not satisfactory"".

This Court, in a decision reported in (1986) I M.L.J. 319 (K. Viswanathan v. D. Shanmugham Mudaliar and Anr.), has held thus:-

Under Or.26, R.10(2) C.P.C. the report of the Commissioner is evidence in the suit and forms part of the records. The report of the

Commissioner has therefore, evidentiary value and can be utilised by either of the parties as evidence in support of their case. This provision cannot

be set at naught by scrapping the Report. The effect of scrapping the Report is that the Report which is evidence in the case and part of the record

ceases to be so and cannot be referred to by the parties. The mere fact that the Commissioner has failed to note certain features which according

to the Defendant were important does not mean that the whole Report should be scrapped. Adequate provision to safeguard the interest of the

parties concerned is made in Sub-rule (3) of O.26, Rule 10 C.P.C.

Reiterating the same, in a decision reported in (2000) I L.W. 893 (Veppanathar @ Karuppannan and Anr. v. Kaliappan) this Court has held

thus:-

Under Or.26, R.10, Sub-rule (3) the Court, if it is dissatisfied with the report, can direct setting aside the Report or the Court can direct the

Commissioner to rectify the defect or deficiency, taking into consideration the objections evidence let in, in that behalf and to file a supplementary

Report. As far as possible, Commissioner, who has already visited the property should be directed to file a supplementary Report and only if that

is not possible, the Report could be scrapped.

Elaborating the position regarding the appointment of second Advocate Commissioner, the Division Bench of the Kerala High Court in a

decision reported in AIR 1986 Kerala 83 (Swami Premananda v. Swami Yogananda) has held thus:-

We may at once state that the trial Court committed a serious error in setting aside Ext.C5 (first Commissioner''s report) for the reasons stated by

it or the manner in which it was set aside. Ext.C5 has been set aside without giving proper and valid reasons and without adverting to the matter on

the merits at all. We have no hesitation to hold that the Court below acted illegally and totally in excess of jurisdiction in mechanically setting aside

the first Commissioner''s report (Ext.C5) for the sole reason that a second Commissioner''s report was ordered and obtained by the Court and in

view of that, the earlier report was superseded.

The Kerala High Court referred to a decision of this Court reported in (Annapragada) Visvanadham Vs. (Annapragada) Mangamma and Others, ,

in which, it was held thus:

The Court should first have considered whether the first Commissioner''s Report should be superseded and must have recorded its reasons in

writing when it came to the conclusion that it should be superseded. Then and then alone, it had jurisdiction to appoint a second Commissioner to

do the same work allotted to the first"".

By a careful analysis of the above decisions and other decisions, we may sum up the position:

Under Or.XXVI R.10(3) C.P.C. for any reason if the Court is dissatisfied with the proceedings of the Commissioner, the Court may direct such

further inquiry to be made as it shall think fit.

In case of deficiency in Report, the Court shall direct further inquiry calling for supplementary Report from the same Commissioner. For collecting

more details, like to measure the properties with the help of surveyor and to submit the survey plan or for verifying the measurement, the same

Commissioner can be reappointed.

If the Court is dissatisfied with the Commissioner''s Report, if considered necessary, it can issue another Commission for collecting more details,

without setting aside the Report of the first Commission. If the Report is not satisfactory, the Court may appoint another Commissioner, but not

without recording any finding as to its dissatisfaction about the Report of the first Commissioner.

Under Or.26 R.10(2) C.P.C. the report of the Commissioner is evidence in the suit and forms part of the records. The Report of the

Commissioner has therefore, evidentiary value and can be utilised by either of the parties as evidence in support of their case. This provision cannot

be set at naught by scrapping the Report. The effect of scrapping the report is that the Report which is evidence in the case and part of the record

ceases to be so and cannot be referred to by the parties. The mere fact that the Commissioner has failed to note certain features which according

to the Defendant were important does not mean that the whole Report should be scrapped (K. Viswanathan v. D. Shanmugham Mudaliar and

Anr. 1986) I M.L.J.319.

Interference with the result of a long and careful local investigation except upon clearly defined and sufficient grounds is to be deprecated. It is not

safe for a Court to act as an expert and to overrule the elaborate Report of a Commissioner whose integrity and carefulness are unquestioned,

whose careful and laborious execution of his task was proved by his Report, and who had not blindly adopted the assertions of either party ( AIR

1940 3 (Privy Council) ).

The Court should first have considered whether the first Commissioner''s Report should be superseded and must have recorded its reasons in

writing when it came to the conclusion that it should be superseded. Then and then alone, it had jurisdiction to appoint a second Commissioner to

do the same word allotted to the first ( (Annapragada) Visvanadham Vs. (Annapragada) Mangamma and Others, ).

The Report of the earlier Commissioner cannot be scrapped, unless there are allegations that the Commissioner has acted in a partial or vindictive

manner.

Mechanical and indiscriminate appointment of more than one Commission, merely because the Court thinks the other party to the proceedings may

not be prejudiced or that the expenses for the Commission are going to be borne by the Applicant for the purpose would create an unhealthy

practice of not only more than one Report on records, but also would lead to the vice of a person or party to the proceedings not being satisfied

with the Commissioner''s Report seeking for the appointment of successive Commissioners till he is able to get a Report of his choice (

Gopalakrishnan Vs. P. Shanmugam, ).

Thus, it is mandatory that the Court must have recorded its reasons in writing when it comes to the conclusion that the earlier Report should be

scrapped. This is all the more so, in the case of final decree stage. Earlier, the Commissioner was appointed, who has filed the Report making

certain suggestions as to the allotment of 81/378th shares to the Plaintiff. If there had been any objection by the second Defendant, the Court ought

to have directed the parties to file their objections. If necessary, the Court ought to have held a summary enquiry thereon as to the allotment of the

share to the Plaintiff.

In cases, where on the objection being filed, when the Court comes to the conclusion that the allotment has not been fair, the Commissioner is

to be directed to file a further Report making alternative suggestions of allotment of property. When the further Report is filed, thereupon, the

Court is to enquire into the matter and pass its own order of allotment of share to the parties.

In this case the proper course would have been to direct the second Defendant to file its objection and the Court ought to have held enquiry

thereon. Any short coming in the Report of the Advocate Commissioner cannot be the ground for scrapping the entire report. It is not known,

whether the second Defendant had filed any objection to the Commissioner''s Report. In the counter statement of the Plaintiff, it has been stated

that the Application has been filed to delay the allotment of legitimate share to the Plaintiff. This objection cannot be brushed aside in toto. The

learned Subordinate Judge has not kept in view the well settled principles before scrapping the report of the First Advocate Commissioner nor had

taken into consideration the suggestion of the Advocate Commissioner nor recorded the reasons for scrapping the Commissioner''s Report. Under

such circumstances, the impugned order cannot be sustained.

For the foregoing reasons, the order of the II Additional Subordinate Judge, Villupuram, made in I.A. No. 1242 of 2003 in O.S. No. 60 of

1991 dated 28-11-2003, is set aside and this Revision Petition is allowed. Consequently, the connected C.M.P. No. 6895 of 2004 is closed. In

the circumstances of the case, there is no order as to costs. The lower Court is directed to afford opportunity to parties to file their objections to

the Commissioner''s Report and if necessary, to hold enquiry and to dispose of the final decree application in accordance with law.