Sobhana vs Girija. K.K And Ors

The suit is for partition of properties. On the basis of the joint statement of compromise filed by the parties, a preliminary decree was passed in the

suit for partition of the plaint schedule properties.

Defendant No.8 filed application for passing final decree in the suit. The Advocate Commissioner appointed by the court filed a report and a plan

dated 20.12.2012.

The second defendant filed application for remitting the plan and report dated 20.12.2012 filed by the commissioner. The only objection raised by

her in the aforesaid application to the report and plan dated 20.12.2012 of the commissioner was that, instead of plot No.1 in the plan, plot No.4 was

set apart to her share.

Defendant No.8 filed objection to the application filed by the second defendant for remitting the report and the plan. In that statement, he raised

certain other objections with regard to the report and the plan filed by the commissioner.

It appears that the court below remitted the report and plan dated 20.12.2012 filed by the commissioner for filing a revised plan and report.

Meanwhile, defendant No.8 died. The petitioner in this original petition, who is the wife of defendant No.8, filed application to implead her as

supplemental petitioner in the final decree application and the court below allowed that application.

The Advocate Commissioner filed a revised report and plan dated 18.06.2015.

Defendants 3 to 5 and 7 filed an application as I.A.No.897/2017 for setting aside the report and plan dated 18.06.2015 filed by the commissioner

(Meanwhile, the Advocate Commissioner who filed that report and plan had died). The petitioner herein filed objection to the application

I.A.No.897/2017.

As per Ext.P13 order, the court below allowed the application I.A.No.897/2017 and set aside the report and plan dated 20.12.2012 filed by the

commissioner.

This original petition under Article 227 of the Constitution of India is filed by the supplemental petitioner in the final decree application, challenging

the legality and propriety of Ext.P13 order.

Heard the learned counsel for the petitioner and also the contesting respondents.

Learned counsel for the petitioner contended that the prayer in the application I.A. No.897/2017 was to set aside the report and plan dated

18.06.2015 filed by the commissioner but the court below, while allowing that application, has set aside, the report and plan dated 20.12.2012.

The relevant portion of Ext.P13 order reads as follows:

“I have perused the commission report and plan. It is seen that the division of property was not in accordance with the terms of the compromise

decree. Plot No.6 is having an extent of 32½ cents. Plot No.8 is having an extent of 26.4 cents. Whereas the other plots are having lesser extent.

Plot No.1 and 3 are having the extent of 22.3 cents whereas plot No.2 is having the extent of 23 cents. Plot No.4 is having an extent of 22.75 cents.

Plot No.5 is having an extent of 23.75 cents. Plot No.7 is having an extent of 22.5 cents. The reason cited for allotting more share to 8th defendant is

that, allotment of shop was made to him in addition to the house. In fact, 16 cents of property is seen set apart to 8th defendant in addition to his share.

Therefore, I find that the contentions of the petitioners are sustainable. Apparently the division of property effected by the Advocate Commission is

not at all in conformity with the terms of the compromise petition. Therefore commission report and plan dated 20.12.2012 are liable to be set aside.

In the result, this petition is allowed. The commission report and plan dated 20.12.2012 are set aside.â€​

(emphasis supplied)

Ext.P13 order appears to be the result of arbitrary exercise of jurisdiction by the court below and it warrants interference by this Court. As rightly

pointed out by the learned counsel for the petitioner, the prayer in the application I.A.No.897/2017 was to set aside the report and plan dated

18.06.2015 filed by the commissioner. However, the court below, while allowing that application, has set aside the report and plan dated 20.12.2012

filed by the commissioner. In effect, the court below has failed to pass any order on the prayer made in the application I.A.No.897/2017 for setting

aside the report and plan dated 18.06.2015.

Learned counsel for the contesting respondents has tried to justify the impugned order passed by the court below by contending that the date

mentioned as 18.06.2015 in Ext.P13 order is a clerical error. On a perusal of Ext.P13 order, it does not appear to be a clerical error. Twice in Ext.P13

order, the court below has mentioned about setting aside the report and plan dated 20.12.2012 filed by the commissioner.

Even if it is assumed that the date of the report and plan mentioned as 20.12.2012 in Ext.P13 order is a clerical error, this Court is not in a position

to consider the merits of the application I.A.No. 897/2017 and also the merits of Ext.P13 order with reference to the report and plan dated 18.06.2015.

In the affidavit filed in support of the application I.A.No. 897/2017, defendants 3 to 5 and 7 have not stated what is their objection with regard to the

report and plan dated 18.06.2015. What is stated in that affidavit is that they have filed a separate objection with regard to the report and plan dated

18.06.2015. Neither the petitioner nor the respondents have produced copy of the objection filed by the defendants 3 to 5 and 7 to the report and plan

dated 18.06.2015 filed by the commissioner. Moreover, they have also not filed copy of the earlier order passed by the court below remitting the report

and plan dated 20.12.2012 of the commissioner. Without perusing the copy of that order, this Court will not be in a position to ascertain what directions

had been given by the court below at the time of remitting the report and plan dated 20.12.2012 and whether the subsequent plan and report dated

18.06.2015 filed by the commissioner are in accordance with such directions.

In the aforesaid circumstances, Ext.P13 order is liable to be set aside. The application I.A.No.897/2017 has to be remitted to the court below for

fresh consideration and disposal.

Consequently, the original petition is allowed and Ext.P13 order is set aside. The court below shall consider the application I.A.No.897/2017 afresh

and dispose of it in accordance with law.