Sulochana and Others vs Vijay Kumar and Others

K.N. Phaneendra, J.—This Regular Second Appeal is preferred against the order passed by the Addl. District and Sessions Judge at Bidar in RA No. 9/2014 dated 11.09.2014, subsequently it is signed and pronounced on 16.09.2014.

I have heard the arguments of the learned counsels appearing for the appellants as well as for the respondents. Perused the records.

The brief undisputed facts are that:

"A Decree was passed in favour of the plaintiffs (respondent Nos. 1 and 2 herein) by the learned Civil Judge (Sr. Dn.) at Bidar in OS No. 48/1992 declaring the shares of the plaintiffs. The said decree was challenged before this Court being the First Appellate Court in RFA No. 5/2004 and this Court vide judgment dated 9.1.2012, dismissed the said first appeal. However, while dismissing the said first appeal, this Court at para 16 has made certain observations directing the Final Decree Court to allocate the properties amongst the parties in a particular manner. The said directions are as follows:

"The Trial Court on careful appreciation of the entire oral and documentary evidence on record has categorically held that all these properties are the joint family properties. There is no partition and therefore it is available for partition and each one of the sharers is entitled to 1/6th share. The said finding is based on the legal evidence. It cannot be found fault with. The evidence on record shows that the plaintiffs are residing at Zaheerabad whereas the defendants are residing at Bidar. The question is whether the property, which is a house property, which is in the possession of the defendants is to be exclusively allotted to them and the property in the possession of the plaintiffs at Zaheerabad is exclusively allotted to them is a matter to be considered in the final decree proceedings. At the time of effecting the partition by metes and bounds certainly the Court will take note of the fact that the defendants are residing at Bidar in the house property in the last 40 years and if the property at Bidar in terms of money is more valuable than the house property at Zaheerabad, the plaintiffs could be compensated in terms of the money and defendants be allowed to continue to enjoy the house property at Bidar. This matter has to be considered in the final decree proceedings. Similarly, when the first defendant has alienated plot No. 3 in favour of defendant Nos. 6 and 7 and the defendants have put up construction on the property purchased and residing therein, in the final decree proceedings, the Court can consider the request to allot these properties to the share of first defendant, so that their interest is duly safeguarded. This matter also has to be considered in the final decree proceedings at the time of effecting the partition by metes and bounds. Under these circumstances, I am satisfied with the finding recorded by the Trial Court that all these properties are the joint family properties and they are liable for partition and the plaintiffs and defendants are entitled to 1/6th share each is legal and valid and do not call for any interference." 4. Thereafter, the parties have approached the Final Decree Court in FDP No. 16/2003 for drawing up of final decree proceedings in accordance with the guidelines issued by the First Appellate Court. It is significant to note that, suit A-schedule properties are situated at Bidar and are in possession of respondents, whereas the suit B-schedule properties are situated at Zaheerabad are in possession of the plaintiffs.

The Final Decree Court has in fact, in order to implement the guidelines, appointed a Commissioner by name Sri Veershetty, Engineer and Fellow Member of Indian Institute of Valuation, to assess the valuation of the suit schedule properties, who in fact has assessed the market value of the properties in the following manner:

"A-Schedule properties:

(1) Residential House situated at Ganesh Maidan New Housing colony Bidar, Municipal No. 8-10-55 (oldest), 8-10-120 (old), 8-10-1999 (new). Court Commissioner''s valuation at Rs. 1,58,60,000/-.

(2) Shop with godown situated at Gandhi Gunj, Bidar, Municipal No. 9-6-33 (oldest), 8-6-148 (old) 8-6-17 (New) 9-6-235 present. Court Commissioner''s valuation at Rs. 93,00,000/-.

B-Schedule properties:

(1) Residential house situated at village Mamadgi Nylkal Mandal Tq. Zaheerabad, Dist. Medak (A.P) V.P. No. 2-1. Court Commissioner''s valuation at Rs. 6,50,000/-.

(2) Residential house situated at village Mamadgi Nylkal Mandal Tq. Zaheerabad, Dist. Medak (A.P) V.P.V. No. 2-2. Court Commissioner''s valuation at Rs. 2,50,000/-.

(3) Residential house situated at village Mamadgi Nylkal Mandal Tq. Zaheerabad, Dist. Medak (A.P) V.P. No. 2-3/1. Court Commissioner''s valuation at Rs. 1,75,000/-.

(4) Residential house situated at village Mamadgi Nylkal Mandal Tq. Zaheerabad, Dist. Medak (A.P) V.P. No. 1-5. Court Commissioner''s valuation at Rs. 35,000/-.

(5) Residential house situated at village Mamdgi Nylkal Mandal Tq. Zaheerabad, Dist. Medak (A.P). Court Commissioner''s valuation at Rs. 70,000/-.

(6) Residential house situated at village Mamdgi Nylkal Mandal Tq. Zaheerabad, Dist. Medak (A.P) V.P. No. 4-7. Court Commissioner''s valuation at Rs. 2,50,000/-."

After the Court Commissioner submitted his report, the plaintiffs have submitted ''no objection'' to the said report, but the respondents who have seriously challenged the said report mainly on the ground that no notices were issued by the Court Commissioner before evaluating the said property, which is the mandatory requirement under Order XXVI Rule 18(1) and (2) of CPC. On that ground alone, it appears the Final Decree Court has rejected the Commissioner''s report and thereafter, appointed one more Commissioner by name Sri Laxman, Asst. Executive Engineer, PWD. The rejection of the earlier Commissioner''s report came to be passed on 23.3.2013. It is to be noted that the said order was not disputed or challenged before the First Appellate Court.

The second Commissioner by name Sri Laxman, Asst. Executive Engineer, PWD has also submitted his report evaluating the market value only in respect of suit A-schedule properties in the following manner:

"A-Schedule properties:

(1)2/3rd portion valuation of residential building bearing 2/3 X 31,26,6383 = 20,84,455-00

(2) 2/3rd portion of shop with godown bearing municipal 2/3 x 36,86,000 = 24,57,352-00.

No. 9-6-3(old), 9-6-148 (new) situated at Gandhi Gunj, Bidar."

Whereas, Sri Venkatnarayan was appointed as Court Commissioner for valuation of the buildings situated at Mamadgi village, Medak District i.e., which is the B Schedule properties. The said Commissioner has visited the spot and assessed the market value as under:

"B-Schedule properties:

(1) Residential House situated at village Mamdgi Nylkal Mandal Tq. Zaheerabad, Dist. Medak (A.P. V.P.) No. 2-1. Court Commissioner''s valuation at Rs. 6,79,261/-.

(2) Residential house situated at village Mamadgi Nylkal Mandal Tq. Zaheerabad, Dist. Medak (A.P) V.P.V. No. 2-2. Court Commissioner''s valuation at Rs. 1,74,318/-.

(3) Residential house situated at village Mamadgi Nylkal Mandal Tq. Zaheerabad, Dist. Medak (A.P) V.P. No. 2-3/1. Court Commissioner''s valuation at Rs. 8,08,095/-.

(4) Residential house situated at village Mamdgi Nylkal Mandal Tq. Zaheerabad, Dist. Medak (A.P) V.P. No. 1-5. Court Commissioner''s valuation at Rs. 38,089/-.

(5) Residential house situated at village Mamdgi Nylkal Mandal Tq. Zaheerabad, Dist. Medak (A.P). Court Commissioner''s valuation at Rs. 1,11,884/-.

(6) Residential house situated at village Mamdgi Nylkal Mandal Tq. Zaheerabad, Dist. Medak (A.P) V.P. No. 4-7. Court Commissioner''s valuation at Rs. 6,10,496/-."

Thereafter, the said Commissioner''s report was resisted by the parties on the ground that it is on the lower side and the said Commissioner''s report was challenged before the First Appellate Court. Before the First Appellate Court though the first Commissioner''s report was not challenged, it in fact evaluated both the Commissioner''s report and come to the conclusion that the Final Decree Court has wrongly rejected the first Commissioner''s report and in fact, the First Appellate Court accepted the first Commissioner''s report and rejected the second Commissioner''s report and consequently, allowed the petition and ordered that the plaintiffs/petitioners are entitled for 1/3rd portion of the evaluation amount out of the total valuation of the property bearing No. 9-6-33 shop and godown situated at Gandhi Gunj, Bidar and the said amount shall be paid by the defendants to the plaintiffs as per the first Commissioner''s report, as directed by the First Appellate Court in RA No. 5/2004. It is also ordered that the proceedings are more fully described in the B-Schedule properties which are allotted to the petitioners and they shall pay 2/3rd of the valuation amount out of the total valuation of the B-schedule properties as per the first Commissioner''s report. Accordingly, the appeal was allowed.

Being aggrieved by the said order, the present Second Appeal is preferred before this Court.

Admittedly, there are two Commission reports before the Trial Court, though one was rejected, another one was accepted by the Trial Court. Nevertheless, two Commission were ordered by the Trial Court and they evaluated as A and B schedule properties. The first Commissioner has evaluated A and B schedule properties at Rs. 2,51,60,000/- and Rs. 14,30,000/- respectively, whereas the second Commission has evaluated A schedule properties at Rs. 45,41,807/- and B schedule properties at Rs. 24,22,143/-. Therefore, A and B schedule properties are valued at Rs. 3,94,06,000/- by the first Commissioner and Rs. 71,33,950/- by the second Commissioner''s report.

Looking at the above said evaluation by the experts, there is a wide cleavage between two evaluators report. The first Appellate Court in fact has appreciated the Commissioner''s report, though with reference to the second Commissioner''s report, but in my opinion, both the Commissioners reports were not substantiated by the evidence before the Court. Though the first Commissioner''s report was not challenged, on the ground that it is on the higher side, but it clearly goes to show that in fact the parties are fighting their dispute with regard to the inequality in the valuation of the properties. Therefore, it goes without saying that the proper and correct market value of the properties have to be fixed on the basis of the two Commissioners report. When one Commissioner''s report is at the highest value of Rs. 3,94,06,000/- and another Commissioner''s report evaluation at Rs. 71,33,950/-, in my opinion, the Court may not be in a position to step into the shoes of either of the Commissioners report in order to fix or strike a balance between two.

Therefore, in order to ascertain what exactly the market value of the properties, the Court Commissioners ought to have been examined by the parties or cross-examined by the parties in order to ascertain what exactly the correct market value of the property, the Court should have asked the parties to show by means of some more evidence before the Court, for the purpose of adjudicating the rights of the parties in proper and correct manner. It appears, this has not been done either by the Final Decree Court or by the First Appellate Court.

Of course, there is no dispute that the courts are called as expert of experts, because of the reason that the Court is the ultimate adjudicator of the disputes between the parties. Neither the Commissioner would adjudicate the rights of the parties, nor the parties themselves can adjudicate their rights. It is on the basis of the expert''s report, the Court gives its final verdict, therefore, it is called as a report of expert. When such circumstance is there, the Court should exercise its power with utmost care and caution, because, ultimately the verdict binds the parties.

Therefore, before adverting to or giving finding with regard to the evaluation reports made by the Commissioners, the courts should have to take utmost care and caution to satisfy itself as to what exactly the correct and proper market value of the property and then only, the Court should have to render its verdict. In the case on hand, both the Commissioners were not examined. Therefore, the Court may not be in a position to assess which Commissioner report is proper and correct and which is nearest to the market value of the schedule properties.

I have already said that there is a long cleavage between the two Commissioners report. Even on plain reading of the Commissioners report, one may not be in a position to strike the balance to come to a definite conclusion as to what is the market value of the properties. The Court need some more material on record to assess which Commissioner''s report is proper and correct. The Court cannot step into the shoes of either of the Commissioner''s report to give its verdict. The Court can only do that after considering the evaluation report of both the Commissioners only after providing reasonable opportunity to both the parties to put forth their grievances with regard to the market value of the property.

As is available on records, one party claims that the first Commissioner''s report is on the higher side and another party claims that the second Commissioner''s report is proper and acceptable, depending upon their convenience and to suit their cases, the parties are accepting the Commissioners report. But the Court, which is an adjudicator has to strike the balance as to which one is correct and acceptable, whether both can be accepted or one can be accepted, or both can be rejected, if the Court is of the opinion that both the reports cannot be accepted as it is, the Court which has to evaluate the properties and fix up the market value of the property in order to direct one party to pay compensation to another party, that can only be done by way examination of the Commissioners and elucidating the facts. Therefore, in this particular case, in my opinion, both the Commissioners report should be kept alive before the Final Decree Court and both the parties should be permitted to examine and cross-examine the Commissioners and after hearing the parties, the Court has to pass appropriate order fixing the market value of the property and fix the compensation to be payable by either of the parties.

Therefore, in my opinion, the order passed by the learned Addl. District and Sessions Judge upholding the first Commissioner''s report, rejecting the second Commissioner''s report is not proper and correct, and the same is liable to be set aside.

The learned counsel for the respondents herein strenuously contended that since 1992, the plaintiffs are running from pillar to post in order to acquire their share in the property more than two decades have been elapsed, still they are not reaping their share in the properties. Therefore, he requests this Court to fix up the period within which, the Final Decree Court shall dispose of the matter. In my opinion, if I say that preferably within one month from the date of receipt of the copy of the order, the Final Decree Court shall dispose of the above said Final Decree Proceedings. It is also made it clear that immediately, after receipt of this order, the Court without wasting the time, secure the presence of the Commissioners and allow both the parties to cross examine the Commissioners on their grievances.

If the parties want to file objections, they can also be permitted to file objection to the Commissioners report and then examine the Commissioners and after hearing the parties, the Final Decree Court shall pass appropriate order.

With these observations, the appeal stands disposed off.