The Commissioner cannot go beyond the terms of the decree and make allotments on his own judgment.

Gurusharan Sharma, J.

1. Kedar Mahto, father of opposite parties 9 to 11 herein, filed Partition Suit No. 8 of 1959 in the court of Subordinate Judge, Falamu at Daltonganj for partition of his share in, the properties described in the Schedule to the plaint. The Predecessors-in-interest of the petitioner as well as Opposite Parties 1 to 8 herein were defendants 1 and 2 as well as defendants 70 to 73 in the suit. The suit was decreed.

2. In the judgment and preliminary decree dated 26.7.1976 it was held that the plaintiff was entitled to the extent of one share out of 96 shares in all the other Khatas and 25 shares out of 96 shares in Khata No. 20, whereas in other Khatas defendant Nos. 70 to 73 were entitled to 5 Out of 96 shares. Defendants 70 to 73 the four daughters of Ramdihal Mahio were sisters among themselves and they jointly got 5 shares out of 96 shares in the disputed lands including Khata No. 20. The trial court, therefore, observed "Thus there is no evidence contrary to hold that these defendants 70 to 73 have no shares in the disputed lands and it must be held that these four defendants have got five shares out of 96 shares in the Khata in dispute including Khata No. 20...and that the plaintiff is entitled to partition to the extent of one share out of 96 shares in all the Khatas except in Khata No. 20, in which the share of the plaintiff is 25 shares out of 96 shares and the plaintiff is entitled to a separate Takhta to the said extent and the defendants were never in possession by any private partition between the parties and that defendants 70 to 73 are also entitled to a separate Takhta to the extent of 5 shares out of 96 shares in all the Khatas in suit including Khata No. 20 and that the remaining share shall from a joint Takhta of the other defendants.

3. None of the defendants preferred any appeal against the preliminary partition decree and the plaintiff took steps for preparation of final decree. Thereafter a Pleader Amin Commissioner was appointed, who after preparing Takhtas submitted his report on 30.3.1967. Takhta No. 18 was prepared for defendants 70 to 73. No Takhta was prepared for defendants 1 and 2. Takhta No. 19 contained the lands which were not partitioned and left joint for those co-sharers, who were not allotted separate Takhatas.

4. By order dated 30.7.1967, the trial court directed the Commissioner to prepare Takhtas also for other defendants without disturbing the Takhta prepared for defendants 70 to 73. On 10.4.1969 the Commissioner submitted his second report showing allotment of lands out of Takhta No. 19 to defendants 11 to 13 vide Takhta No. 20.

5. By order dated 8.7.1976 the trial court further directed the Commissioner to prepare Takhtas for the remaining defendants, if possible, without disturbing the existing Takhtas. On 26.9.1981 the Commissioner submitted his third report showing Takhta Nos. 21 and 22 prepared in the names of defendants 1 and 2 takhta Nos. 23 to 39 in the means of other defendants. In this report, the Commissioner cancelled the Takhta, originally prepared in accordance with the preliminary decree, for defendants 70 to 73 and allotted those lands to defendants 1 and 2 and others, but inadvertently number of the takhta was wrongly mentioned as 19 instead of 18. The lands kept joint originally vide Takhta No. 19 were allotted to different defendants.

6. In the said third and final report and the entire suit lands were allotted in 37 Takhtas. Defendants 70 to 73, who according to the preliminary decree were entitled to a separate Takhta of 5 shares out of 96 shares, were not allotted any Takhta and the Commissioner observed. "A perusal of the survey Khataian would show that Ramdihal Mahto, Chaudhuri Man to, and Baudh Mahto owned 75 shares in the Khatas under partition. Radihal Mahto died about 50 years ago in the state of jointness with his brother Baudh Mahto and his share devolved by survivorship on the joint brother Baudh Mahto who came to own 10 shares