Judgment N. Pandey. J. The petitioners, who were the plaintiffs in title partition suit no. 360/67, have filed the present civil revision petition against an order dated 15.3.1986 passed by Sri B.N. Shahi, 4th Additional Subordinate Judge, Motihari. 2. The plaintiffs-petitioners filed the partition suit for partition of the properties contained in schedules 1 and 2 of the plaint claiming half share. Further prayer was for allotment of share through a Pleader Commissioner. It was also prayed that the lands which have been illegally sold by defendant no. 1 be allotted to his share in Takhtabandi and, if it was found that the said defendant no. 1 has sold more lands than to his share, the sale be annulled or it be adjusted against the share of the said defendant no. 1. 3. The suit was decreed by the judgment dated 28.6.1973, holding that the plaintiffs were entitled to half share-in the property of schedules 1 and 2 of the plaint. It was also had that sale-deeds Exts. A and A/1 dated 19.6.65 and 15.9.65 executed by defendant no. 1 were not binding on the plaintiffs and they were annulled to the extent of the share of the plaintiff no. 1. The trial court further directed that a preliminary decree for partition be drawn up with respect to schedules 1 and 2 property of the plaint. A Pleader Commissioner was directed to be appointed and it was made clear that the Pleader Commissioner would make sincere efforts to adjust the transfers made by defendant no. 1 in his share and if it exceeds his share then it will be deemed to have been annulled. 4. A Pleader Commissioner was appointed and necessary writs by the court were issued. Accordingly, the Pleader Commissioner submitted his report on 17.1.1981. The defendant No.1 only filed objection to the Pleader Commissioner's report and the court below after considering the objections, set aside the report of the Pleader Commissioner. Against the said order, Civil Revision No. 942/82 was filed before this Court and a Bench of this Court by order dated 25.9.84, set aside the order of the court below, setting aside the Pleader Commissioner's report, and remitted the case back for re-hearing with directions. The relevant directions issued by this Court are mentioned hereunder.
Against the said order, Civil Revision No. 942/82 was filed before this Court and a Bench of this Court by order dated 25.9.84, set aside the order of the court below, setting aside the Pleader Commissioner's report, and remitted the case back for re-hearing with directions. The relevant directions issued by this Court are mentioned hereunder. "I, therefore, direct the executing court to re-hear the argument in respect of Pleader Commissioner's report after issuing notice to the parties" "The Pleader Commissioner's report be accepted or rejected in the light of the direction made by the trial court in the judgment." 5. Thereafter, it appears that defendant no. 1, who had filed objection earlier, withdrew his objection and accepted the Takhtabandi made by the Pleader Commissioner. Thereafter Defendant Nos. 3 to 6 filed objections to the Pleader Commissioner's report on 10.8.85, although they bad not filed any objection at the time when the report was submitted. In their objection, it was mentioned that the Pleader Commissioner has given undue favour to the plaintiffs while making valuation of the lands. It was also mentioned that Defendant no. 1 has wrongly compromised the suit with the plaintiffs. The plaintiffs in their rejoinder submitted that Defendant Nos. 3 to 6 had no locus standi to object the Pleader Commissioner's report. It was further submitted that there was a compromise between the defendants 1st Party, affirming the Pleader Commissioner's report. 6. The court below, by his order dated 15.3.1986, set aside the report of the Pleader Commissioner in part and directed the parties to take steps for getting Takhtabandi. The Court below, while allowing the objections filed on behalf of Defendant Nos. 3 to 6, has held that the directions contained in the judgment of the suit are that the transfers made through Exts. A and All dated 19.6.65 and 15.9.65 are annulled to the extent of the share of the plaintiffs. The Pleader Commissioner ought to have allotted half of the lands situated at village-Tarkulwa to the plaintiffs' share and remaining half ought to have been allotted to Defendant Nos. 1 and 2. It was further held that it was not open to the Pleader Commissioner to allot almost entire area to the plaintiffs' share. According to the court below, this loss caused to the objectors, is not likely to be compensated in terms of money. 7.
1 and 2. It was further held that it was not open to the Pleader Commissioner to allot almost entire area to the plaintiffs' share. According to the court below, this loss caused to the objectors, is not likely to be compensated in terms of money. 7. Learned counsel appearing on behalf of the petitioners has submitted that the court below had no jurisdiction to entertain the objection flied on behalf of Defendant Nos. 3 to 6. According to him this Court by order dated 28.9.84, had remanded the case back to the court below with a limited direction to the extent that the report of the Pleader Commissioner be accepted or rejected, in the light of the directions made by the trial court. The court below was only directed to re-bear the argument in respect of the Pleader Commissioner's report, after issuing notice to the parties. Learned counsel for the petitioners has submitted that in view of the direction of this court, it was not open to the trial court to entertain objections filed on behalf of Defendant nos. 3 to 9. He bas further submitted that it was not open to the trial court to look to any other paper except those which were already on the record on the day when the direction was issued by this Hon'ble Court in the earlier civil revision application. He has, thus submitted that the order of remand was binding on the parties. According to him since the defendant no. 1, who had filed objection earlier was no longer pending because he had already compromised the case with the plaintiffs, accepting the report of the Pleader Commissioner. Replying to the question raised as to whether the present civil revision application was maintainable, the learned counsel for the petitioner submitted that he had raised only the question of jurisdiction of the court concerned, in entertaining fresh materials, while considering the Commissioner's report. He has submitted that this Court had issued limited directions while remanding the case back to the trial court, but the trial court while considering the Pleader Commissioner's report had taken into consideration certain materials to which he bad no jurisdiction to consider. 8.
He has submitted that this Court had issued limited directions while remanding the case back to the trial court, but the trial court while considering the Pleader Commissioner's report had taken into consideration certain materials to which he bad no jurisdiction to consider. 8. On the other hand, learned counsel for the opposite parties submitted that since the Pleader Commissioner had not obeyed the directions issued by the trial court in its preliminary decree the report of the Pleader Commissioner was tit to be rejected. He has further submitted that the lands, which were purchased by the defendant nos. 3 to 6 from defendant no. 1, have not been allotted in their share at one place; rather the Pleader Commissioner has allotted the lands at different places having very lower valuation to that of the lands, which have been allotted to the plaintiffs. 9. From the submissions made on behalf of the parties, it appears that until 28.9.1984, when the civil revision no. 942 of 1982 was disposed of by this court, directing the court below to re-consider the matter in accordance with the direction given is the order, no objection whatsoever filed on behalf of opposite party nos. 3 to 6 was pending before the court below. Of course defendant no. 1 had filed objection and the same was on the record. Learned Counsel appearing on behalf of the petitioners has confined his submission only to the extent that the Executing Court had no jurisdiction to consider any other material, which was not on the record on the day when the civil revision no. 942/82 was remanded. According to him, since the defendant no. 1, who had filed objection, had compromised the case with the plaintiff accepting the report of the Pleader Commissioner, the court below had to consider the Pleader Commissioner's report on the basis of the materials on the record. He has rightly submitted that in accordance with the direction of this Hon'ble Court, the court below had to consider as to whether the Pleader Commissioner's report was in accordance with the decree of the trial court. 10. I am conscious about the limited jurisdiction of this court, while exercising the revisional power in the matter relating to consideration of the report of the Pleader Commissioner, whether it has been confirmed or set aside by the trial court.
10. I am conscious about the limited jurisdiction of this court, while exercising the revisional power in the matter relating to consideration of the report of the Pleader Commissioner, whether it has been confirmed or set aside by the trial court. The aggrieved parties are always at liberty to agitate their claim before appropriate court at appropriate time. Since this court had already remanded the case for limited purpose, therefore, it was not open to the trial court to consider any other material which was not on the record on the day when the order of remand was passed. 11. In the back ground of the abovementioned facts I am left with no option, but to hold that the impugned order is illegal and the same is set aside. The petition is allowed and the case is remanded back for re-hearing and disposal strictly in accordance with the direction issued by this Court in civil revision no. 942/82. Since the matter has been pending from the year 1967 the court below is being directed to dispose of the matter- within a period of four months from the date of receipt of the order. However in the circumstances of this case, there will be no order as to costs. Application allowed.