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2003 DIGILAW 464 (KER)

Nirmala Ravindran v. K. C. Mohanan

2003-07-20

G.SASIDHARAN

body2003
Judgment :- In O.S.36/1986 on the file of the Munisiff, Kannur filed by the first respondent in this revision a preliminary decree was passed by the Court finding that the plaint schedule property had to be divided into three equal shares and one share had to be allotted to the first respondent. The direction in the preliminary decree was that the remaining two shares belonged to the defendants in the suit, one of whom was the petitioner. But the Court said that the shares of the defendants need not be separately allotted as they had not paid the requisite court-fee. It is submitted that court-fee for partition of properties was paid by the defendants and a supplementary preliminary decree was passed allotting 1/3 shared to the first defendant, who is the revision petitioner and the other 1/13 share to the second respondent. The share of the plaintiff was got assigned by the second respondent and now she has 2/3 share in the property. 2. Final decree proceedings are pending in the Court and a commission was taken out for dividing the properties by metes and bounds. The report and the plan were remitted to the Commissioner and the Commissioner again filed a plan and report. In the report the Commissioner said that the total extent of the plaint schedule property is 16 ½ cents and the area covered by the house, care shed, bath room, wall etc. would come up to 9, cents and the remaining 7 ½ cents lie on the north, west and south as shown in the plan. The Commissioner found that the actual partition of the plaint schedule property by giving the house in the share that would be allotted to the second respondent is not possible and hence filed report stating that the entire plaint schedule property including the house has to be allotted to the share of the second respondent and an amount of Rs.2,90,798.75 has to be given to the petitioner as owelty amount. 3. Petitioner filed I.A.1451/2002 raising objection to the report and plan of the Commissioner and praying to remit back the commission report to the Commissioner. The trial Court made an order on 11th June, 2002 dismissing the above interlocutory application filed by the petitioner and that order is under challenge. 4. 3. Petitioner filed I.A.1451/2002 raising objection to the report and plan of the Commissioner and praying to remit back the commission report to the Commissioner. The trial Court made an order on 11th June, 2002 dismissing the above interlocutory application filed by the petitioner and that order is under challenge. 4. This revision is filed challenging an order made by the trial Court in an application filed by the petitioner for remitting the commission report to the Commissioner. The submission made by the learned counsel appearing for the petitioner is that the order under challenge cannot be treated as an interim order for the purpose of deciding the question whether a revision will be maintainable. It is maintained that the order being one made by the trial Court considering the objection raised by the revision petitioner to the report and plan of the Commissioner appointed in final decree proceedings the order cannot be said to be of interim nature. 5. Order XXVI Rule 9 deals with commissions issued to make local investigations. Order XXVI Rule 10 deals with the procedure of the Commissioner and in sub-rule (1) of that rule it is said that the Commissioner, after such local inspection as he deems necessary and after reducing to writing the evidence taken by him, shall return such evidence, together with his report in writing signed by him, to the Court. Order XXVI Rule 10(2) provides that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the record. It is also stated in the above rule that any of the parties to the suit may examine the Commissioner personally in open Court touching any of the matters referred to him or mentioned in his report. Sub-rule (3) of Rule 10 of Order XXVI says that where the Court is for any reason dissatisfied with the proceedings of the Commissioner, it may direct such further enquiry to be made as it shall think fit. 6. Order XXVI Rule 14 deals with the procedure of the Commissioner appointed to make partition of immovable property. The procedure mentioned in that rule is different from the procedure mentioned in Rule 10 of Order XXVI. 6. Order XXVI Rule 14 deals with the procedure of the Commissioner appointed to make partition of immovable property. The procedure mentioned in that rule is different from the procedure mentioned in Rule 10 of Order XXVI. A commission issued to make partition of immovable property has to divide the property into as many shares as may be directed by the order under which the commission is issued the allot such shares to the parties. Rule 14(1) of Order XXVI, also says that the Commissioner may award sums to be paid for the purpose of equalizing the value of the shares. Sub-rule (2) of Rule 14 of Order XXVI gives powers to the Court, after taking into consideration the objections raised by the parties to the report of the Commissioner and after hearing the parties, to confirm, vary or set aside the same. It is clear from sub-rule (2) of Rule 14 of Order XXVI that when a report submitted by the Commissioner after dividing the properties by mates and bounds is confirmed what remains to be done is to pass a decree in accordance with the report and plan of the Commissioner. Whereas in sub-rule (2) of Rule 10 of Order XXVI it is said that the report of the Commissioner and the evidence taken by him shall be evidence in the suit and shall form part of the records, what is said in sub-rule (3) of Rule 14 of Order XXVI is that where the Court confirms or varies the report or reports it shall pass a decree in accordance with the report or reports as confirmed or varied. Since the provision in sub-rule (3) of Rule 14 is as stated above, the order confirming report and plan of the Commissioner in final decree proceedings has all characteristics of a final decision taken for the reason that what remains to be done is only passing of the decree. The final decree that will be passed will be in accordance with the commissioner’s report and plan as provided in the above clause of the sub-rule and the order confirming the report and plan stands in a different footing than an order made in respect of a report or plan submitted by a commission issued under Rule 9 of Order XXVI. Since the order confirming the report and plan of the Commission issued in a final decree proceedings is having the above characteristics it cannot be said that an order made by the Court is of an interim nature. 7. In Rugmani v. Addl. Sub Judge (1997 [1] KLT 729) a learned Judge of this Court held that an order passed refusing to set aside commission report in the final decree proceedings has finality even though it is an order of interim nature. The learned Judge went on to observe that a report of the Commissioner filed in final decree proceedings cannot be equated with a commission report filed at the trial stage where the parties are free to adduce evidence. It was held in the above decision that the bar of filing a revision petition under Section 115 of the Civil Procedure Code against an order passed in an application to remit the Commissioner's report during trial proceedings cannot be there in the case of an order passed in a final decree proceedings and revision will lie against such an order. In the light of the above decision and other facts stated above, it cannot be said that a revision will not lie against an order by which an application for remitting Commissioner's report and plan filed in Court during final decree proceedings is rejected. 8. The submission made by the learned counsel appearing for the petitioner is that even if it is found that a revision under Section 115 of the Civil Procedure Code is not maintainable this Court is having ample powers under Article 227 of the constitution for looking into the correctness of the order made by the Court refusing to remit the report to the Commissioner. It is also submitted that in a petition filed under Section 115 of the Civil Procedure Code if the Court is of the view that a revision will not lie against the impugned order the Court can examine the question whether the correctness of the order can be gone into in exercise of the powers under Article 227 of the Constitution. In Nirmala v. Nandakumar (2000(1) KLT 843) a learned Judge of this Court, when dealing with the question whether a revision was maintainable against an order, observed that even if it was assumed that a revision under Section 115 of the Code was not maintainable against the impugned order the High Court was having jurisdiction under Article 227 of the Constitution to consider in the interest of justice whether the Court below was right in making the order. 9. In Babu v. Travancore Devaswon Board and others (1998 [8] SCC 310) the Supreme Court said that when exercising revision under Section 103 of the Kerala Land Reforms Act the High Court would be justified in exercising its powers under Article 227 of the Constitution of India. That was a case in which appeals were filed before the Supreme Court against the judgment of this Court in revision on under Section 103 of the Kerala Land Reforms Act. The dispute between the parties before the Land Tribunal was as to whether the appellant before the Supreme Court was a cultivating tenant. The Supreme Court considered the question whether the High Court had acted within its jurisdiction under Section 103 of the Kerala Land Reforms Act. In considering the above question the Supreme Court said that even when the High Court is exercising revisional power under Section 103 of the Land Reforms Act it has the power under Article 227 of the Constitution of India. The Supreme Court, on observing as stated above, said that even if it was found that the quashing of the order by the High Court was not proper exercise of powers under Section 103 of the Act the act on the part of the High Court could be justified as one which was done in exercise of the powers under Article 227 of the Constitution. The Supreme Court observed that the power of the High Court under the Constitution of India is always in addition to the powers in revision under Section 103 of the Act and in that view, the High Court was correct in setting aside the order of the Tribunal. The Supreme Court observed that the power of the High Court under the Constitution of India is always in addition to the powers in revision under Section 103 of the Act and in that view, the High Court was correct in setting aside the order of the Tribunal. In Achutananda Baidya v. Prafullya Kumar Gayen and others (AIR 1997 SC 2077) the Supreme Court said that the power of superintendence of the High Court under Article 227 of the Constitution is not confined to administrative superintendence only but such power includes within its sweep the power of judicial review and that the power and duty of the High Court under Article 227 is essentially to ensure that the Courts and Tribunals, inferior to the High Court, have done what they were required to do. It is open to the High Court to act in exercise of powers under Article 227 to interfere with the finding of fact if the subordinate court came to the conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper exercise of jurisdiction or if its conclusions are perverse. Even if this Court is not having jurisdiction under Section 115 of the Civil Procedure Code the correctness of the order can be gone into in exercise of the powers under Article 227 of the Constitution of India. 10. Here, the Commissioner on finding that the building is there on the major portion of the property found that the entire property has to be given to the second respondent and the value of the share of the petitioner has to be given to him. In the preliminary decree there is a direction that as far as possible the house in the plaint schedule property shall be allotted to the share of the second defendant after adjusting the share value. The second defendant, who is the second respondent herein, is now having 2/3 share in the property and when the Commissioner measured out the property and tried to make allotment of 2/3 share to the second respondent it was found that from the remaining portion of the property it was not possible to make allotment of the share of the petitioner. The learned counsel appearing for the petitioner would submit that making provision in the report of the Commissioner to give the value of the share of the petitioner is not acceptable to the petitioner. In the report mention is made that there is a car shed and a well in the property and if that portion of the property is also allotted to the second respondent it is not possible to divide the properties by metes and bounds allotting the share of the petitioner. 11. The direction in the preliminary decree is that as far as possible the house in the plaint schedule property shall be allotted to the share of the second respondent. It is not correct to say that when the house which is situate in the plaint schedule property is being allotted to the second respondent and when the property which is allotted to her is determined it has to be done in such a way as to include the car shed and also the well in that property. The direction cannot be understood as one by which the trial Court meant that the entire building has to be given to the second respondent since what the Court says is that the building will have to come within the share of the second respondent if it is possible to divide the properties by metes and bounds in that way. The allotment of the entire property to the second respondent by saying that the entire building, the car shed and the well will have to come in the share that is being allotted to her cannot be accepted. The property has to be divided by metes and bounds so as to allot a portion of the property to the petitioner. In making such allotment to the petitioner, if found necessary, the car shed and the well can be removed from the property if that portion of the property happens to be allotted to the share of the petitioner. In the above circumstances, I find that the order made by the learned Munsiff dismissing the application filed by the petitioner for remitting the commission report and plan to the Commissioner has to be set aside. In the above circumstances, I find that the order made by the learned Munsiff dismissing the application filed by the petitioner for remitting the commission report and plan to the Commissioner has to be set aside. This revision is allowed on setting aside the order of the learned Munsiff and directing that the report and plan have to be remitted to the Commissioner to divide the property by metes and bounds by allotting a portion of the property to the petitioner also.