The court upheld the final decree in a partition case, affirming that the Commissioner complied with directions and that property assessments were reasonable and equitable.

JUDGMENT :

Respondents 1, 3, 4 and 5 in FDIA.No.701/2011, who are defendants 1, 3, 4 and 5 in O.S.No.67/2007 on the files of the Sub Court, Tirur, assail final decree and judgment dated 24.01.2018 passed therein. The respondents are plaintiff and defendants 2 and 6 to 11.

2. Heard the learned counsel for the appellants and the learned counsel appearing for the first respondent in detail.

3. The parties in this appeal shall be referred with reference to their status before the trial court for easy reference.

4. In this matter, the plaintiff is none other than a person, who purchased 14 undivided shares out of 192 shares belonging to the 2^nd defendant in another suit for money filed against him in a court auction. Thereafter, he filed suit for partition for getting separate possession of the said shares. As on 10.12.2010 preliminary decree was passed and thereafter the present application at the instance of the plaintiff was filed to pass final decree.

5. The trial court appointed a Commissioner to prepare a plan to effectuate partition by metes and bounds. Initially, Ext.C1 report and Ext.C2 plan were submitted by the Commissioner, against which I.A.No.308/2015 had been filed by defendants 1, 3, 4 and 5. The trial court considered the contentions in I.A.No.308/2015 and remitted back Exts.C1 and C2 to the Commissioner, directing as under:

“1. Commissioner is directed to provide 8 feet width way to the plot, set apart to the share of final decree petitioner.

2. Commissioner is directed to assess the value of the property at the rate of the market value shown in the plaint.

3. The Commissioner has to specify how the value of the house is assessed and if necessary the Commissioner can seek the assistance of an expert to assess the value of the house.”

6. Thereafter, the Commissioner filed fresh report and the same got marked again as Exts.C1 and C2. Challenging the fresh report also, defendants 1, 3, 4 and 5 filed I.A.No.1436/2017 with prayer to remit back the same to the Commissioner for the purpose of effecting partition of the property again and to prepare a fresh plan. The same was opposed by the plaintiff. The trial court disallowed the petition and accepted the fresh report and accordingly, final decree was passed as under:

“1) Plot A in Ext.C-2 plan is hereby allotted to the petitioner.

2) Respondents shall pay Rs.73,347/- to the petitioner by way of equalisation of shares and there will be a charge for the said sum on the respondents’ property.

3) The schedule description of plot A appended to Ext.C-1 report and Ext.C-2 plan shall form part of an shall be annexed with final decree.

4) The final decree shall be engrossed on stamp papers at the prevailing rate.

5) The petitioner is entitled to get the cost in the final decree proceedings.”

7. While assailing the legality of Exts.C1 and C2 which were challenged as per I.A.No.1436/2017, the learned counsel for defendants 1, 3, 4 and 5 submitted that the present Ext.C1 report and Ext.C2 plan were not prepared as per the direction issued in I.A.No.308/2015 and it is specifically pointed out by the learned counsel for defendants 1, 3, 4 and 5 that even though it was directed, as per order in I.A.No.308/2015, to specify how the value of the house is assessed and if necessary, the Commissioner could seek the assistance of expert to assess the value of the house, the value of the building was assessed by the Commissioner by himself. The learned counsel for defendants 1, 3, 4, and 5 submitted further that no expert assistance was sought for by the Commissioner, and the Commissioner, on finding that the building was constructed in the year 1990, assessed its value by fixing Rs.650 per sqft and arrived at Rs.9,47,786.50/- as the value of the building. It i