Parties must raise objections timely during proceedings; failure to do so constitutes acquiescence, validating the final decree and its property distribution.

JUDGMENT :

EASWARAN S., J.

This appeal arises out of the final decree in O.S.No.178/2003 on the file of the Subordinate Judge Court (Additional), Palakkad, as confirmed by the First Appellate Court in A.S.No.112/2019.

2. The defendants are the appellants herein. The predecessor-in-interest of the respondents filed O.S.No.178/2003 for partition. By a preliminary decree dated 19.10.2010, the Sub Court, Palakkad, directed the plaint schedule property to be divided into two by metes and bounds. One share each was directed to be allotted to the plaintiff and the first defendant. While effecting partition by metes and bounds, the Sub Court directed the Advocate Commissioner to consider the respective occupation of the property by the parties. Pursuant to the said preliminary decree, the plaintiffs filed Final Decree Interlocutory Application No.482/2011 in O.S.No.178/2003 for passing of final decree. In the meantime, the original plaintiff expired and the supplemental plaintiffs were impleaded. During the course of the final decree proceedings, it was brought to the notice of the Court that the defendants had filed R.S.A No.525/2018 against the preliminary decree and an interim stay of passing of final decree was passed initially. However, the date of the same was not extended. The appeal was dismissed by this Court on 08.07.2019. In the final decree proceedings, an Advocate Commissioner was appointed for dividing the property by metes and bounds and accordingly, a report (Ext.C1) was filed along with which Ext.C1(a) plan was also produced. The Advocate Commissioner in his report and plan had demarcated ‘A’ portion of 30.35 cents in favour of the defendants and ‘B’ portion of 30.35 cents (26.85 cents + 3.50 cents) in favour of the plaintiffs. The defendants did not file any objection to the Advocate Commissioner’s report and submitted before the Court that a final decree can be passed based on the report. Accordingly, the Sub Court, Palakkad, passed final decree as per order dated 22.03.2019. Aggrieved by the same, the appellants herein preferred A.S.No.112/2019 before the District Court, Palakkad, which also came to be dismissed on 13.03.2024. Consequent to the dismissal of the appeal by the First Appellate Court, it is stated across the bar that the delivery of the property was effected during January 2025 and the plaintiffs has been put in possession of the same.

3. Heard Shri. S.Sanal Kumar, the learned Senior Counsel assisted by Adv.T.J.Seema and Shri.R.Lakshminarayan, the learned Senior Counsel assisted by Shri. E.Adithyan for respondents.

4. The learned Senior Counsel for the appellants submitted that the Advocate Commissioner did not refer to the reservations held by the Sub Court in favour of the defendants as per condition No.3 of the preliminary decree. Although, the defendants, did not raise any objection to the report of the Advocate Commissioner, it was incumbent upon the Advocate Commissioner to have adhered specifically to condition No.3 in the preliminary decree. Both the Courts had erroneously held that in the absence of any objection by the defendants, the report of the Advocate Commissioner could be accepted. There is not warrant for such conclusion and that when gross illegality is committed by the Advocate Commissioner and which results in an inequitable distribution of the plaint schedule property, the defendants are entitled to maintain this appeal.

5. Per contra, R.Lakshminarayan, the learned Senior Counsel appearing on behalf of the plaintiffs would point out that the final decree proceedings started from the year 2011 and the Advocate Commissioner had inspected the property during 2016. As a matter of fact, if the defendants had any objection regarding the distribution of the plaint schedule property by the Advocate C