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2010 DIGILAW 2079 (PAT)

Parasnath Singh v. Fateh Bahadur Singh

2010-09-08

MUNGESHWAR SAHOO

body2010
JUDGEMENT Mungeshwar Sahoo, J. 1. This First Appeal is directed against the judgment dated 24.11.1983 confirming the Pleader Commissioners Report and the final Decree dated 5.1.1984 passed by Sri S.K. Sinha, the learned 1st Subordinate Judge, Chapra in Partition Suit No. 105 of 1979. 2. It appears that the plaintiff-respondents filed Partition Suit No. 105 of 1979. The said suit was decreed primarily holding that the plaintiff-respondent have got half share in the suit property. Thereafter, final decree proceeding was initiated. Pleader Commissioner was appointed and after spot verification, he partitioned the suit property half and half. Thereafter, the Pleader Commissioner submitted his report. The defendants-appellants did not file any objection. Thereafter, the learned Court below by the impugned Judgment/Order dated 24.11.1983 accepted the Pleader Commissioners Report confirmed it and directed to prepare final decree and further directed that the Pleader Commissioners Report shall form part of the final decree. The defendants have filed this First Appeal against that final decree. 3. The learned Senior Counsel, Mr. Raghuwansh Singh, submitted that the Advocate Commissioner has wrongly and incorrectly classified the Class-I land as Class-Ill and Class-ll and likewise wrongly classified Class-Ill land as Class-I or Class-ll land. The learned counsel further submitted that only after wrong classification, the defendants have been allotted Class-Ill land and Class-ll lands whereas the plaintiffs have been allotted only Class-I lands. The learned counsel further submitted that many of the lands/plots which are dihbasgit land but have been incorrectly shows as Class-I land. Plot No. 3816, i.e., Sahan land is joint among the 3 branches of Ram Khelawan Singh, Ram Charitar Singh and Ram Jabna Singh but the entire area has been allotted to the defendants measuring 16 dhurs. The learned counsel further submitted that certain plots were not subject matter of suit but the Advocate Commissioner also partitioned those properties. The learned counsel further submitted that valuable lands have been given to the plaintiffs and less value lands have been given to the defendants-appellants. On these grounds, the learned counsel submitted that the final decree is liable to be set aside. 4. On the other hand, Mr. V. Nath, appearing for the respondent submitted that the defendants, in spite of notice, did not co-operate with the Advocate Commissioner. On these grounds, the learned counsel submitted that the final decree is liable to be set aside. 4. On the other hand, Mr. V. Nath, appearing for the respondent submitted that the defendants, in spite of notice, did not co-operate with the Advocate Commissioner. They were all along present in the final decree proceeding before the Commissioner and also they were knowing about the filing of report by the Pleader Commissioner but they never choose to file any objection as such they cannot be allowed to take all these grounds for the first time before this Court. On these submissions, the learned counsel submitted that the Appeal is liable to be dismissed. 5. Before going to the merit of this case, it may be mentioned here that the First Appeal filed by the appellants against the preliminary decree being First Appeal No. 572 of 1982 was also heard alongwith this First Appeal one after other. The judgment are being delivered separately one after the other. The First Appeal against the preliminary decree has been dismissed. 6. So far this First Appeal against final decree is concerned, from perusal of the Pleader Commissioners Report, it appears that the Pleader Commissioner has mentioned in his renort that on all the dates. the defendants were present but always they refuse to sign on me diary of the Pleader Commissioner on the ground that their Advocate has advised them not to sign anywhere. From berusal of the report, it appears that the defendants although are present before the Pleader Commissioner, they never signed anywhere. They were also knowing about the filing of report before the Court below but they never filed any objection. None of the grounds raised before this Court were raised in the Court below. It is not the case of the defendant that no time was granted to them. They did not adduce any evidence in support of the claim that the Advocate Commissioner wrongly classified the lands in suit. And also that the Pleader Commissioner allotted valuable lands to the plaintiffs. All these grounds raised by the learned counsel for the appellants relates to fact and depends on evidences. The Pleader Commissioners report disclose that he inspected the spot in presence of the parties. He also classified the lands in presence of the parties. No objection was raised and, therefore, the learned Court below confirmed the Pleader Commissioners report. All these grounds raised by the learned counsel for the appellants relates to fact and depends on evidences. The Pleader Commissioners report disclose that he inspected the spot in presence of the parties. He also classified the lands in presence of the parties. No objection was raised and, therefore, the learned Court below confirmed the Pleader Commissioners report. Now, therefore, the points raised by the appellant cannot be investigated for the first time before this Court. There is no material available on record to show that the submissions of the appellant is supported by any evidence either oral or documentary. 7. I, therefore, find no reason to interfere with the final decree. The submissions made by the appellant has got no merit. 8. In the result, I find no merit in this First Appeal and accordingly this First Appeal is dismissed.