Appeal court remands partition final decree for objections to flawed commissioner's report and procedural fairness.

Challenging the final decree in a suit for partition, the plaintiff is in appeal.

2. The grievance of the appellant-plaintiff is regarding the correctness and acceptability of Ext.C3 series Commissioner's Report. The trial court had accepted the report and passed final decree in terms thereof.

3. We have heard the learned counsel on either side.

4. The preliminary decree reads thus :-

“1. That plaint A schedule properties and D schedule properties except item Nos.5, 10, 11, 16 to 18 and 20 to 22 are ordered to be divided into 8 equal shares out of which plaintiff and 4^th defendant do entitled to get 2/8 shares each and other defendants do entitled to get 1/8 shares each.

2. That the allotment of shares to the defendants do made subject to payment of court fee towards their share.

3. That it is further observed that the equities and reservations if any do considered during the final decree stage.

4. That the costs do come out of the estate. 5. And that the suit is adjourned sine die.”

To effect partition in terms of the preliminary decree, the Commissioner filed Ext.C3 series report and plans. According to the appellants, the report contains various mistakes and cannot be accepted. Faced with the time schedule prescribed by this Court in OP(C) No.499/2021, the trial court proceeded to pass a preliminary decree without even affording an opportunity to the appellants to file objections to Ext.C3 series. The learned counsel for the appellant attempted to point out various mistakes in the report.

5. While the learned counsel appearing for the contesting respondents would not deny that the trial court had expedited the proceedings and that time was not granted to file objections to the Commissioners' Report, he pointed out that the suit is of the year 2014 and that minor irregularities if at all any in the Commissioner's Report, could well be rectified equitably by this Court.

6. One of the grievances of the appellant is with regard to the extent of plaint 'A' schedule item No.1. The Commissioner reported that, though the item is described as having a total extent of 15 cents, on actual measurement the extent was found to be only 13.20 cents. However, in the further portion of the report, the Commissioner has reckoned only 8.5 cents and there is no explanation for the remaining extent. The learned counsel appearing for the contesting respondents would point out that the remaining extent has been kept apart for a common way as shown in the plan and has been indicated as 'G' schedule in the Commissioner's Report.

7. We find that even accepting the contention of the respondent to be correct, still the total extent of that item would be only (8.5 + 3.40) 11.90 cents. Therefore, still there is a deficit of (13.20 – 11.90) 1.30 cents. Possibly, some mistake might have crept in somewhere. However, the same remains unexplained.

8. Yet another grievance of the appellant is that there is a well situated in one of the items, which has not been valued by the Commissioner. The said fact is evident from the report itself.

9. Yet another grievance of the appellant is with regard to the valuation of the plots in Plaint A schedule item No.2. The adjoining plots having the very same road frontage have been valued differently, without any explanation in the said regard, it is pointed out. We find that there is no explanation for adopting different valuation for such plots.

10. Though few other mistakes in the report were placed before us, in the light of the discrepancies noted by us as above, we do not think it necessary to discuss further into the same.

11. Apparently, the trial court which was faced with the direction from this Court in OP(C) 499/2021 for a time bound disposal of the final decree proceedings, expedited the proceedings, resulting in denial of opportunity to the appellant to place his objections to the report, on record. The Commissioner filed the report on 10.06.2022. The nex