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2017 DIGILAW 849 (HP)

Joginder Pal v. Devki

2017-07-25

TARLOK SINGH CHAUHAN

body2017
Tarlok Singh Chauhan (oral): This Regular Second Appeal under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 27.8.2016, passed by the learned Additional District Judge, Chamba in Civil Appeal No. 768/2014, whereby he affirmed the order and decree dated 9.7.2013, passed by the learned Civil Judge (Junior Division), Chamba, H.P. in CMA No. 14/2005. 2. Briefly stated the facts giving rise to the present appeal are that respondent No.1 filed a suit for partition with respect to the land comprised in Khata/Khatauni No.12/13, Khasra Nos. 124 and 136, measuring 58-6 sq. ft. and Khata/Khatauni No.13/14, Khasra Nos. 117, 122, 123, 124/1, measuring 99.7 sq. yards, situated at Kaswati Bhanjraru, Tehsil Churah, District Chamba, H.P. The appellant No.1 had raised specific plea that he is in possession of the property comprised in Khasra Nos.122 and 136 consisting of three storeyed pucca shops, however, the same was adjudicated and it was held that possession of one co-sharer is the possession of all the co-sharers and accordingly, learned trial court decreed the suit so filed by respondent No.1 vide judgment and decree dated 10.11.2000 and passed the preliminary decree for possession by partition in favour of respondent No.1 to the extent of her share i.e. 1/3rd share in Khata/Khatauni No.13/14, ½ share in Khata/Khatauni No.13/14 and ½ share out of property comprised in Khasra Nos. 124 and 136. 3. Indubitably, the preliminary decree passed by the learned trial court has been upheld uptill the Hon’ble Supreme Court. It appears that during the execution of the preliminary decree, the Local Commissioner was appointed to prepare the mode of partition and to partition the property in question by metes and bounds and to submit the report. The Local Commissioner submitted his report, whereby he suggested a particular mode of partition, which was assailed by the appellants along with proforma respondents, however, the learned executing court vide order dated 9.7.2013 dismissed the objections. 4. Aggrieved by the order dated 9.7.2013 passed by the executing court, the appellants approached the first appellate court, who, too vide judgment and decree dated 27.8.2016 affirmed the order passed by the learned trial court. Hence, the present regular second appeal. 5. Mr. 4. Aggrieved by the order dated 9.7.2013 passed by the executing court, the appellants approached the first appellate court, who, too vide judgment and decree dated 27.8.2016 affirmed the order passed by the learned trial court. Hence, the present regular second appeal. 5. Mr. Nimish Gupta, learned counsel for the appellants, has vehemently argued that the impugned judgments and decrees rendered by the learned courts below are liable to be quashed and set aside on the ground that before rejecting the objections so filed by the appellants, it was incumbent upon the courts below to have afforded an opportunity to them to examine the Local Commissioner as per mandate of Order 26 Rule 14 CPC. Sh. N.K. Sood, learned Senior Advocate assisted by Mr. Aman Sood, Advocate, for the respondent would contend that the findings recorded by the learned courts below are strictly in accordance with the provisions envisaged in law, more particularly, the provisions as contained in Order 26 Rule 14 CPC, which do not mandate the examining of the Local Commissioner for the purpose of deciding the objections. 7. I have heard learned counsel for the parties and have also gone through the record of the case carefully. 8. The following substantial question of law arises for consideration: Whether the impugned judgments and decrees are vitiated because of non-examination of the Local Commissioner. 9. With the consent of the parties, the appeal is taken up for final hearing. 10. It would be noticed that the learned trial court has rejected the contention of the appellants primarily on the ground that the issue stands adjudicated uptill the Hon’ble Supreme Court and, therefore, the findings with respect to the possession have become final and the appellants, therefore, cannot be permitted to go beyond the decree and agitate the matter. Whereas, insofar as the first appellate court is concerned, even though the provisions of Order 26 Rules 13 and 14 CPC along with the judgment of the Punjab and Haryana High Court in Chander Parkash vs. Ved Parkash and others, reported in Punjab Law Reporters (Vol. XCIX-(1991-1) and judgment of the division bench of Calcutta High Court in Gourhari Das vs. Jaharlal Seal, AIR (44)1957 CALCUTTA 90 were cited before it to canvass that it was necessary to examine the Local Commissioner before deciding the objections, but the said Court rejected the same by recording following reasons:- “18. XCIX-(1991-1) and judgment of the division bench of Calcutta High Court in Gourhari Das vs. Jaharlal Seal, AIR (44)1957 CALCUTTA 90 were cited before it to canvass that it was necessary to examine the Local Commissioner before deciding the objections, but the said Court rejected the same by recording following reasons:- “18. In the present case, no prayer was made by the respondents/objectors to call the Commissioner and to examine him by the objectors. Hence, the submission of the ld. counsel for the appellants, at this stage, that the trial court has decided the objections without examining the local commissioner and affording the opportunity of the appellants/objectors to lead the evidence is no sustainable.” 11. Order 26 Rule 14 C.P.C. reads thus:- “Procedure of Commissioner.- (1) The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorized thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares. (2) The Commissioner shall then prepare and sign a report or the Commissioners (where the commission was issued to more than one person and they cannot agree) shall prepare and sign separate reports appointing the share of each party and distinguishing each share (if so directed by the said order) by metes and bounds. Such report or reports shall be annexed to the commission and transmitted to the court; and the court, after hearing any objections which the parties may make to the report or reports, shall confirm, vary or set aside the same. (3) Where the court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit. 12. (3) Where the court confirms or varies the report or reports it shall pass a decree in accordance with the same as confirmed or varied; but where the court sets aside the report or reports it shall either issue a new commission or make such other order as it shall think fit. 12. As early as in the year 1935, similar issue came up for consideration before the Lahore High Court in Nasir Ahmad and another vs. Sarfaraz-ur-Rahman Khan and others, AIR 1935 Lahore 501, wherein it was held that even although there is no provision in CPC entitling a party, who objects to the report of the Commissioner, to produce evidence in support of his objections, Order 26 Rule 14 provides that the Court after hearing any objections, which the parties may make to the report or reports, shall confirm, vary or set aside the same. This implies that the parties are entitled to substantiate their objections, but in such case, as a rule of practice, the Commissioner should first be examined with reference to the objections, if any, and if it appears from the statement of the Commissioner that there is ground for further inquiry into any matter, which is raised in the objections, then the parties should be allowed to produce evidence or the Commissioner directed to amend his report accordingly. 13. In Gourhari Das and another vs. Jaharlal Seal and another, AIR (44) 1957 CALCUTTA 90, a division bench of Calcutta High Court held that where in a partition suit, a Commissioner has been appointed, after the preliminary decree, to value the joint family dwelling houses, he should, while submitting his report, give reasons for the recommendations made by him. After the report is received, the parties should be given opportunity to file objections to the Commissioner’s report. If any one of the parties prays for the examination of the Commissioner in Court that is to be allowed. As to what further evidence will be allowed to be adduced, it at all is to be determined by the Court after the Commissioner has been examined, and the Judge has formed an opinion as regards the objections raised by the parties. 14. As to what further evidence will be allowed to be adduced, it at all is to be determined by the Court after the Commissioner has been examined, and the Judge has formed an opinion as regards the objections raised by the parties. 14. In Dhadi Barik and others vs. Arjun Barik and others, AIR 1986 ORISSA 203, it was held by a single Judge of Orissa High Court that a plain reading of Order 26 Rule 14(2), particularly the expression 'after hearing any objections which the parties may make to the report or reports' gives the impression that there is no embargo disabling a party raising objection to the report of the Commissioner in the final decree proceeding of a suit for partition to adduce evidence to substantiate the same. It cannot be interpreted that besides examining the Commissioner, no other witnesses can be examined. In other words, a party raising objection to the report of the Commissioner in the final decree proceeding of a suit for partition, can, besides examining the Commissioner, examine other witnesses to substantiate his objection and does not suffer from any legal disability therefor. It is apt to reproduce paras 6, 7 and 8 of the judgment, which read thus:- “6. A plain reading of Order 26 Rule 14(2) quoted above, particularly the expression 'after hearing any objections which the parties may make to the report or reports' gives the impression that there is no embargo disabling a party raising objection to the report of the Commissioner in the final decree proceeding of a suit for partition to adduce evidence to substantiate the same. It cannot be interpreted that besides examining the Commissioner, no other witnesses can be examined. In other words, a party raising objection to the report of the Commissioner in the final decree proceeding of a suit for partition, can, besides examining the Commissioner, examine other witnesses to substantiate his objection and does not suffer from any legal disability therefor. 7. Authorities to throw light on the subject of discussion are very scarce. No decision of this Court could be cited at the bar to illuminate on the subject of controversy, perhaps because of the uniformity of practice in the Civil courts of the State of examining the Commissioner alone to substantiate objections to his report in final decree proceeding in partition suits. No decision of this Court could be cited at the bar to illuminate on the subject of controversy, perhaps because of the uniformity of practice in the Civil courts of the State of examining the Commissioner alone to substantiate objections to his report in final decree proceeding in partition suits. Two decisions reported in AIR 1935 Lah 501, Nazir Ahmed v. Sarfraz-ur-Rahman Khan and AIR 1957 Cal 90 , Gourhari Das v. Jaharlal Seal were cited. A Division Bench of Lahore High Court in the case of Nazir Ahmad examined the provisions of Order 26 Rule 14 of the Code and observed : -- "This implies that the parties are entitled to substantiate their objections but in such cases as a rule of practice the Commissioner should first be examined with reference to the objections, if any, and if it appears from the statement of the Commissioner that there is ground for further enquiry into any matter which is raised in the objections then the parties should be allowed to produce evidence or the Commissioner directed to amend his report accordingly. In my opinion in the present case the Court should have examined the Commissioner to ascertain from him whether he had excluded from his valuation the improvements if any made by the appellants to the property in dispute. If he had not excluded them, then the Court should have given opportunity to the appellants to prove that They had made improvements or should have directed the Commissioner to report whether any improvements had been made by the appellants and to submit a report as to their value." A Division Bench of the Calcutta High Court similarly examined the same provisions and observed :-- "From the report submitted by the Commissioner it further appears that no reason, either general or detailed, have been given for fixing the valuations of the different items of property. It is desirable that the Commissioner should submit a supplementary report giving the reasons for the recommendations made by him. After such a supplementary report is received, the parties will be given opportunity to file objections to the Commissioner's report. If any one of the parties prays for the examination of the Commissioner in Court that is to be allowed. It is desirable that the Commissioner should submit a supplementary report giving the reasons for the recommendations made by him. After such a supplementary report is received, the parties will be given opportunity to file objections to the Commissioner's report. If any one of the parties prays for the examination of the Commissioner in Court that is to be allowed. As to what further evidence will be allowed to be adduced, if at all, is to be determined by the Court below after the Commissioner has been examined, and the learned Judge has formed an opinion as regards the objections raised by the parties." 8. In both the decisions it has been emphasised that the Commissioner should be first examined and if after his examination the Court will determine that it will be necessary to make further enquiry relating to any particular objection for which parties may be allowed to lead evidence, then nothing will prevent the Court to so direct the parties. Both the decisions have not given unrestricted power to Courts to freely allow parties to adduce evidence to substantiate objections to reports of the Commissioner. The reason therefore, which is not far to seek, seems to be avoidance of unnecessary delay in encouraging parties to fight out a further suit within a suit with all evil incidents connected thereto, such as loss of court's time, expenditure, continuance of bitterness, as well as, expeditious passing of the final decree, so as to, decide the rights of the parties effectively and completely for all times to come.” 15. Similar view was taken by the learned Single Judge of Punjab and Haryana High Court in Ram Murti Goyal and others vs. Smt. Basant Kaur and others, 1991 PLJ 147, wherein, while examining provisions of Order 26 Rule 14 CPC, it was held that the said provisions entitle a party to lis to substantiate its objections. The Commissioner should be examined first with reference to objections and if ground for further enquiry is felt necessary, the parties should be allowed to produce evidence or Commissioner directed to amend his report. 16. Similar reiteration of law can be found in the judgment of the division bench of Jammu and Kashmir High Court, in Wazir Kanwal Singh vs. Wazir Baij Nath, AIR 1998 JAMMU AND KHASMIR 94, wherein ratio of the judgments, as cited above, has been followed. 17. 16. Similar reiteration of law can be found in the judgment of the division bench of Jammu and Kashmir High Court, in Wazir Kanwal Singh vs. Wazir Baij Nath, AIR 1998 JAMMU AND KHASMIR 94, wherein ratio of the judgments, as cited above, has been followed. 17. Now, insofar as this Court is concerned, it too has followed the ratio of the judgments laid down by the Lahore High Court and Calcutta High Court in the cases cited above. The first decision on the point is rendered by a learned Single Judge of this Court in Om Parkash vs. Ved Parkash and others, AIR 2000 HP 45 . This was followed by another judgment of this Court in Gopal Dass and others vs. Bismanchali, 2009(2) Shim. LC 250. 18. Similar reiteration of law can be found in a recent judgment rendered by the Punjab and Haryana High Court in Bhupinder Kishore vs. Fateh Singh Yadav and others, (2015-2) 178 P.L.R. 578. 19. In view of what has been noticed and discussed above, this Court has no hesitation to conclude that the judgments and decrees rendered by the learned courts below stand vitiated because of non-examination of the Local Commissioner, that too, despite there being authoritative pronouncements on this issue by various High Courts and more importantly, the two judgments rendered by this Court as have been noticed above. Substantial question of law is answered accordingly. 20. For the forgoing discussion, I find merit in the instant appeal and the same is accordingly allowed. Resultantly, the impugned judgments and decrees rendered by the learned courts below are set aside and the matter is remitted back to the learned executing court for deciding the objections afresh in accordance with law, more particularly, in light of what has been observed hereinabove. 21 The parties through their counsel are directed to appear before the learned executing court on 16.8.2017. Records be sent to that court so as to reach well before the date fixed. 22 The appeal is disposed of in the aforesaid terms, so also the pending applications, if any, leaving the parties to bear their own costs.