In partition suits, established procedures involving a commissioner's report must be adhered to; objections require substantial evidence to be upheld against such reports.

JUDGMENT :

A.C. BEHERA, J.

1. This Civil Miscellaneous Petition under Article 227 of the Constitution of India, 1950 has been filed by the petitioners against the Opposite Parties praying for quashing (setting aside) an order dated 07.01.2019 (Annexure-1) passed in C.S.No.43 of 2013 (F.D.) by the learned Senior Civil Judge, Balasore.

2. The petitioners and the Opposite Parties in this Civil Miscellaneous Petition are the defendants and plaintiffs respectively in the suit vide C.S. No.43 of 2013 (F.D.) pending in the court of learned Senior Civil Judge, Balasore.

3. The factual backgrounds of this Civil Miscellaneous Petition, which prompted the petitioners/defendants for filing of the same is that, after the preliminary decree passed in the suit for partition vide C.S. No.43 of 2013, final decree proceeding thereof under Order-20, Rule-18 of the C.P.C. 1908 was started.

4. In that final decree proceeding, a civil court Amin commissioner was appointed for division of the suit properties in accordance with the preliminary decree passed in the suit. The appointed civil court Amin commissioner submitted report, partition map and allotment sheets on dated 14.11.2017 in the said final decree proceeding, to which, the petitioners/defendants objected under the following two grounds by filing a petition on dated 30.07.2018:

(i) an excess area of 900 sq. links (those are not in possession of the parties) have been illegally allotted in favour of the plaintiffs.

(ii) the defendants (petitioners) have not been allotted sufficient space in the report and map prepared by the survey knowing Amin commissioner for their use as road to reach the public road.

The plaintiffs objected to the said petition dated 30.07.2018 of the defendants stating in their objection that, the report of the survey knowing Amin commissioner is in no way contrary to the preliminary decree passed in the suit, for which, the petition dated 30.07.2018 of the defendants is not entertainable under law.

On the basis of the aforesaid petition dated 30.07.2018 of the defendants and the objection against the same by the plaintiffs, an enquiry was conducted by the learned Senior Civil Judge, Balasore and in such enquiry, the survey knowing Amin commissioner was examined by the court and he was also cross-examined by the parties including the defendants.

After hearing from both the sides and taking the evidence of the survey knowing Amin commissioner into consideration, as per impugned order dated 07.01.2019, the learned Senior Civil Judge, Balasore rejected to the petition dated 30.07.2018 of the defendants assigning the reasons that, “there is no illegality or infirmity in the report, partition map and allotment sheets etc. prepared by the survey knowing Amin commissioner. For which, the learned Senior Civil Judge, Balasore accepted to the said report, partition map and allotment sheets etc. (those were submitted by the survey knowing Amin commissioner on dated 14.11.2017) and formed the said report, partition map and allotment sheets etc. as the part of the final decree proceeding and directed the plaintiffs to file stamp papers for preparation of final decree.”

5. On being aggrieved with the aforesaid order, i.e., to the rejection of the petition dated 30.07.2018 of the defendants passed on dated 07.01.2019 by the learned Senior Civil Judge, Balasore in C.S. No.43 of 2013(F.D.), the defendants challenged the same by filing this Civil Miscellaneous Petition under Article 227 of the Constitution of India, 1950 being the petitioners against the plaintiffs arraying them (plaintiffs) as Opposite Parties.

6. I have already heard from the learned counsel