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1977 DIGILAW 17 (KAR)

PARVATHAMMA v. SHIVAMMA

1977-02-01

M.S.NESARGI

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( 1 ) THE order dt. 29-3-1975 passed by the Principal Civil Judge, Mysore, in OS. 136 of 1973, is challenged in this petition. ( 2 ) BY the said order, the Civil Judge accepted the report submitted by the Commissioner appointed by him to measure the properties in question and divide the same into two equal shares and allot one share to the petitioners and one share to the respondents bearing in mind the principles of equalisation by means of money also. ( 3 ) A Commissioner was appointed to measure and effect division of plaint 'a' schedule immoveable properties, which are four in number. The Commissioner divided the four items of properties into two lots i. e. , item Nos. 1 and 3 one lot and Item Nos. 2 and 4 another lot and equalised the two shares by making the allottee of Item Nos. 2 and 4 to pay rs. 721 to the allottee of Item Nos. 1 and 3. ( 4 ) TWO contentions are urged by Sri R. J. Babu, learned Counsel appearing on behalf of the petitioners. The first contention is that the civil Judge did not issue any direction to the parties to appear before the commissioner, as is mandatorily provided by Rule 18 of Order XXVI, cfc. The second contention is that the two. divisions, made by the commissioner, are on the face oi themselves unjust and inequitable. ( 5 ) I will take up the second contention in the first instance. The commissioner submitted his report by 29-1-1975. Both sides prayed for time to consider the report and the case was adjourned to 19-2-1975. It was again adjourned to 6-3-1975. On 6-3-1975, the Counsel for plaintiffs 1, 2 and 4 took time in regard to filing of objections to the report of the commissioner. It was adjourned to 15-3-1975. Again it was adjourned to 21-3-1975 and thereafter to 29-3-1975. No objections were filed to the report of the Commissioner. The Commissioner is a Junior Engineer and that shows he is competent to do the work of measuring and partitioning the house properties. His report discloses that he has taken the measurements in detail and has observed the conditions of the house properties. No objections were filed to the report of the Commissioner. The Commissioner is a Junior Engineer and that shows he is competent to do the work of measuring and partitioning the house properties. His report discloses that he has taken the measurements in detail and has observed the conditions of the house properties. It cannot be said, in view of the material contained in the report, that on the face of it the division made by the Commissioner is either unjust or inequitable. If in fact, it was so, the petitioners would not have failed to file their objections to the report of the Commissioner after taking so many adjournments. ( 6 ) TO appreciate the first contention of Sri R. J. Babu, it is necessary to bear in mind some facts. It is undisputed that the Commissioner was appointed on the request of the respondents, with notice to the plaintiffs. It is also stated by Sri R. J. Babu that the Commissioner issued notices to the parties and the plaintiffs were present when the Commissioner did the work of measuring and observing the conditions of the house properties. These facts make it abundantly clear that the petitioners had every opportunity of taking part in the proceedings of the Commissioner and in fact, they did take part. ( 7 ) SRI R. J. Babu firstly relied on the decision of this Court in Execution second Appeal 109 of 1973, Ex. S. A. 109/73. It is held therein that the provisions of rule 18 of Order XXVI CPC, are mandatory and non-compliance of that rule vitiates the proceedings of the Commissioner. In the said case, the appellants were not present when the Commissioner held his proceedings. The Commissioner stated in his report that he had issued notice to appellant-2 but that was refuted by appellant-2. Sadanandaswamy, J held, following pedda Seetharamappa v. Pedda Appaiah, AIR. 1962 AP. 84. SM. Mandera mukherjee v. Sachindra Chandra Mukherjee, AIR. 1902 Pat. 211. and Latchan Naidu v. Rama Krishna Ranga Rao Bahadurr Bobbili Samasthanam, AIR. 1934 Mad. 548. that proceedings of the Commissioner was vitiated, as the provisions of Rule 18, Or. XXVI cfc, had not been complied with. a. Sri R. J. Babu nextly relied on the decision in P. Seetharamappa's case (2) and SM. Handera Mukherjee's case (3 ). 211. and Latchan Naidu v. Rama Krishna Ranga Rao Bahadurr Bobbili Samasthanam, AIR. 1934 Mad. 548. that proceedings of the Commissioner was vitiated, as the provisions of Rule 18, Or. XXVI cfc, had not been complied with. a. Sri R. J. Babu nextly relied on the decision in P. Seetharamappa's case (2) and SM. Handera Mukherjee's case (3 ). There is no need to make any separate reference to these two decisions, because it is already observed that they have been followed in Exn. S. A. 109 of 1973 (1 ). ( 8 ) SRI N. Sampath Kumar, learned Advocate for the respondents, placed reliance on the decision in Shivarama Bhat v. Mahabala Bhatt, (1969) 2 Myslj. 284. The decision in Latchan Naiud's case (4), is referred to in this decision. The facts in this decision are that ex-parte a Commissioner was appointed to prepare an inventory of the property in the suit wherein three defendants were there. Commissioner gave a notice of his proposed execution of the commission warrant only to defendants 1 and 2 and they were present during the proceedings of the Commissioner while defendant-3 was not present. The provisions of Rule 18 of Order XXVI CPC, had not been complied with by the Court after issuing the commission warrant. Narayana Pai, J held that the proceedings of the Commissioner were not vitiated so far as the respondents 1 and 2 are concerned and that the proceedings and report of the Commissioner would not be evidence under rule 10 (2) of Order XXVI CPC, as against defendant-3. ( 9 ) IT is recognised in all the afore cited decisions that the object behind the provision in Rule 18 of Order XXVI CPC, is to see that the work of the Commissioner is carried out in the presence of the parties, because the report that the Commissioner submits becomes evidence under Rule 10 (2) of Order XXVI CPC. It is no doubt true that in this case the Civil Judge did not act according to Rule 18 of Order XXVI CPC, but the Commissioner issued notice and the petitioners took part in the proceedings of the Commissioner. Therefore, the work done by the commissioner was in the presence of all the parties. What would have been achieved by complying with Rule 18 of Order XXVI CPC has been achieved. Therefore, the work done by the commissioner was in the presence of all the parties. What would have been achieved by complying with Rule 18 of Order XXVI CPC has been achieved. Hence, the effect of non-compliance of Rule 18 of Order XXVI, under the facts and circumstances of this case, does not vitiate the proceedings of the Commissioner. Therefore in my opinion, this argument of Sri R. J. Babu has to fail. ( 10 ) SRI R. J. Babu submitted that the petitioner-3 Puttammani has sentimental attachment to the residential house at Item 1 and as such is desirous of having that item allotted to the share of the petitioners. ( 11 ) SRI N. Sampath Kumar, learned Counsel appearing on behalf of the respondents, gave an undertaking on behalf of the respondents that the respondents would permit petitioner-3 Puttammanni to reside in the house where she is now residing till the duration of her life irrespective of Item Nos. 1 and 3 having been allotted to the respondents in the division effected by the Commissioner and accepted by the Court. This undertaking given by Sri N. Sampath Kumar should, in my opinion, set at rest ,the sentiments of petitioner-3 Puttammanni. ( 12 ) IN view of the foregoing reasons, I do not find any good reasons in support of the petition and dismiss the petition. No order as to costs under the circumstances of the case. --- *** --- .