Vijay Kumar & Anr vs Durga Devi & Ors

 Tarlok Singh Chauhan, J

The revision petition is directed against the order of the learned District Judge, Kangra dated 08.08.2018, whereby he has dismissed the appeal filed

by the petitioner under Section 96 of the Code of Civil Procedure against the order of the learned Civil Judge (Jr. Division) Kangra, dated 14.06.2013.

Briefly stated facts giving rise to the filing of the present petition are that in Civil Suit No. 114/91 between the parties, the learned Trial Court

passed a preliminary decree of partition declaring both the parties are entitled to half share each in the suit property. In pursuance of said preliminary

decree, the respondent filed an application for passing of final decree before the learned Trial Court. The learned Trial Court appointed Local

Commissioner and in light of his report, the final decree of partition came to be passed. The Local Commissioner report as well as the statements of

the parties recorded by him were ordered to be made part of the final decree of the partition.

Aggrieved by the passing of the decree of partition, the petitioners filed an appeal before the learned first Appellate Court, which came to be

dismissed vide the impugned judgment.

It is vehemently contended by Mr. R. K. Gautam, learned Senior Counsel, duly assisted by Ms. Megha Kapur Gautam, learned Advocate that the

learned Trial Court has not correctly appreciated the report of the Local Commissioner, who otherwise was biased against the petitioners.

On the other hand, Mr. G. R. Palsra, learned Advocate, would contend that the order passed by the learned Trial Court is in accordance with law

and the instant petition is nothing but a delaying tactics adopted by the petitioners.

I have heard learned counsel for the parties and have gone through the records of the case.

At the outset, it needs to be noticed that at the time when the matter was pending before the learned Trial Court, the petitioners had filed objections

to the report of the Local Commissioner and on the said objections, issues were framed and the parties were permitted to lead evidence and it is only

after evaluating the objections, the report of the Local Commissioner was affirmed.

Not only this, the report of the Local Commissioner alongwith the order passed by the learned Trial Court was unsuccessfully assailed before the

learned Additional District Judge-II, Kangra at Dharamshala. Therefore, the learned Trial Court has rightly concluded that the objections as filed were

liable to be rejected, as not maintainable, as those objections already stood adjudicated.

A feeble attempt is made before this Court to canvass that the site plan Ext.PW5/A prepared by the Local Commissioner was not correct as per

the measurement shown in the site plan. But even this contention is without merit, as the parties had admitted before the Local Commissioner that the

measurements were correct and it is only thereafter that the suit property had been allotted to the parties as per the report of the Local Commissioner.

As regards the contention that the Local Commissioner in any way biased against the petitioners, I really do not find any serious allegations having

been made in the petition. Moreover, there is no material to support such contention.

Having said so, I find no merit in this petition and the same is accordingly dismissed, leaving the parties to bear their own costs.