The appointment of a commissioner under Section 54 of CPC must comply with statutory provisions; reliance on incomplete reports is impermissible.

JUDGMENT

Though this appeal is admitted today, with the consent of the learned counsel for the parties, matter is taken up for final disposal as the issue involved in this matter falls in a narrow compass.

2. There is no dispute of the fact that suit in O.S.No.217/2007 was filed by the plaintiff/respondent No.1 for relief of partition and separate possession in respect of two items of the suit schedule property namely, (1) land bearing Sy.No.417 an extent of 3 acres 7 guntas and (2) Janzer No.160, property bearing No.465 consisting of residential house measuring 45 X 261/ feet and vacant 2 space measuring 33 X 28 ft., situated at Kaiwara village, Kiawara Hobli, Chintamani Taluk, before the Senior Civil Judge & JMFC, Chintamani (hereinafter referred to as 'Trial Court' for short). Preliminary decree was passed in the said suit on 10.07.2012. That seeking implementation of the said preliminary decree, plaintiff/respondent No.1 initiated final decree proceedings in FDP No.7/2013 in which FDP Court vide order dated 03.04.2014 has appointed Taluka Surveyor of Chintamani Taluk as a Court Commissioner to effect the division of item No.1 of suit schedule property being landed property as per preliminary decree passed in the said O.S.No.217/2007. Thereafter, by another order dated 09.06.2014 the FDP Court appointed an Advocate Commissioner to divide the item No.2 of the suit schedule property being the house property.

3. In furtherance thereof, Taluka Surveyor has submitted a report which reads as under;

A sketch is also furnished along with said report.

4. The advocate Commissioner who was appointed to divide the house property has also filed a report which reads as under;

and he has also submitted a rough hand sketch and mahazar with respect to the plaint schedule properties.

5. This appeal is admitted to consider the following substantial question of law;

(1) Whether the Trial Court and the First Appellate Court are justified in accepting the report of the Taluka Surveyor, the Court commissioner who was appointed to cause division of property only in respect of item No.1 of the suit property which is agricultural land in Sy.No.4/7 measuring 3 acres 7 guntas, wherein the said Court Commissioner has filed mahazar and sketch only in respect of 3 acres of land excluding 7 guntas of land with 3 structures existing thereon?

(2) Whether the Trial Court and the First Appellate Court are justified in appointing an advocate as a Commissioner to conduct mahazar and survey and cause division in respect of item No.2 of the suit schedule property which consists of house property and the vacant site in the light of provisions of Section 54 of CPC?

6. Sri. Shivashankar K, learned counsel for the appellant referring to the aforesaid documents submitted that;

(a) That the Taluka Surveyor who was appointed as a Court commissioner to divide the property in respect of item No.1 of the suit schedule property, has conducted the survey and mahazar only in respect of 3 acres of vacant agricultural land and has excluded 7 guntas of land in which three structures measuring- (1) 621/ X 22 ft. (2) 621/ X 19 ft. and 2 2 (3) 26X46 ft., existing without any justifiable reasons. Thus, he submits that exclusion of the said extent of 7 guntas with structures existing thereon from being divided and allotted to the shares of the parties has not been taken into consideration by the Trial Court as well as by the First Appellate Court.

(b) As regards the division of the property as made by the Advocate Commissioner in respect of item No.2 of the suit schedule property consisting of house