Read Order: Mithlesh and Another v. Somesh Kumar and Others 

Monika Rahar

Chandigarh, May 31, 2022: While dealing with a case wherein the Local Commissioner did not comply with the preliminary decree in his report, thus leading the Trial Court to pass the impugned order directing the Commissioner to file a fresh report, the Punjab and Haryana High Court has referred to Order 26 Rules 13 &14 CPC and opined that a Court is not bound by the report of the Local Commissioner and it may after hearing the objections either confirm, vary or even set aside the same. 

Also, it was observed by the Bench of Justice Manjari Nehru Kaul that even in the absence of any objections, it is the bounden duty of the trial Court to reject any such report, which on the face of it, is not in conformity with the preliminary decree. 

Thus, the Court upheld the decision of the Trial Court while observing that the Local Commissioner had no authority in suggesting modes of partition without regard to the shares determined in the preliminary decree. 

The instant revision petition was filed under Article 227 of the Constitution of India for setting aside of the order of the Trial Court wherein the Halqa Patwari (Local Commissioner) was directed to again suggest the mode of partition of the entire suit land on which a road laid by the PWD (B&R) was in existence. 

In this case, the the respondent-plaintiff pleaded before the trial Court that the suit land measuring was acquired by the State of Haryana, however, he was unable to substantiate his plea by way of any cogent, much less, convincing evidence qua any such acquisition and therefore, the trial Court held in the preliminary decree that the entire suit land was liable to be partitioned.

The preliminary decree declared the rights of the parties by determining the extent of their shares as well as the total area of land, qua which, their respective shares were to be apportioned. Thereafter, an application for drawing final decree was moved by the respondents/plaintiffs and accordingly, a Local Commissioner under Order 26 Rule 13 of CPC, was appointed by the trial Court to suggest the mode of partition. 

The Local Commissioner suggested the mode of partition after excluding the area of road that was seemingly unauthorizedly constructed by the PWD (B&R) Department as there was neither any evidence with respect to the said portion of land having been acquired nor was there any relevant entry in the revenue records to the said effect. 

Both the parties filed their respective objections to the report and the trial Court after perusing the same, concluded vide impugned order that the Local Commissioner erred in excluding the land, under the road while suggesting the mode of partition, more so, since the land under the road was specifically included in the preliminary decree. 

Thus, vide the impugned order, the trial Court directed the Local Commissioner to again suggest the mode of partition of the entire suit land, including the land under the road.

It was the case of the petitioner that the trial Court acted contrary to the settled principles of law by directing the Local Commissioner (Halqa Girdawar) to suggest afresh the mode of partition of the entire suit land measuring, including the area of road constructed by the PWD (B&R) Department. The Counsel contended that once the Local Commissioner in its report excluded the area of road after considering the actual ground position, the trial Court was bound to modify the preliminary decree in accordance with the said report and thereafter, order partition in consonance with the said report.

Also, the Counsel submitted that since it was beyond the jurisdiction of the trial Court to set-aside the report of the Local Commissioner, the impugned order suffered from material irregularity and thus, deserved to be set-aside.

Per contra, the counsel appearing on behalf of the respondent/plaintiffs, while opposing the prayer and submissions made by the counsel opposite, submitted that the impugned order was in accordance with the settled law, as the trial Court could not have travelled beyond the preliminary decree while passing the final decree. Hence, the impugned order being a well reasoned one, did not warrant any interference, the Court argued. 

After considering these rival submissions, the Court opined that the contention of the petitioner’s counsel arguing that the impugned order was erroneous as the trial Court could not have directed the Local Commissioner to include the entire area, was devoid of any merit. Reliance in this regard was placed upon the Supreme Court decision in Muthangi Ayyanna v. Muthangi Jaggarao wherein it was held that a final decree could not amend or go behind the preliminary decree on a matter, which was determined by the preliminary decree. 

However, the Court added that there is one exception to this general rule, as carved out by the Apex Court in Ganduri Koteshwaramma and another Vs. Chakiri Yanadi and another wherein it was held that, “if in the interregnum i.e. after the passing of the preliminary decree and before the passing of the final decree, the events and supervening circumstances occur necessitating change in shares, there would be no impediment for the Court to amend the preliminary decree or pass another preliminary decree re-determining the rights and interests of the parties having regard to the changed circumstances.”

Coming to the present case in light of the above, the Court added that here in this case, no such supervening change of circumstances after passing of preliminary decree existed which would have warranted any amendment in the preliminary decree. Admittedly, the Court observed that the road over the land was in existence even prior to the passing of the preliminary decree, therefore, the trial Court could not have gone behind or amended the preliminary decree on a matter, which was determined by such decree i.e. the total area liable to be partitioned.

Further, from a bare perusal of Order 26 Rules 13 & 14 of CPC, the Court observed that a Court may issue a commission to such person, as it thinks fit for the purpose of partition or separation according to the “rights as declared in such decree”. Still further, the Court added that these Rules undoubtedly made it clear that a Court is not bound by the report of the Local Commissioner and it may after hearing the objections, if any, either confirm, vary or even set aside the same. 

Furthermore, it was also observed that as per Rule 14(3), when the Court sets aside the report of a Local Commissioner, it is empowered to either issue a new commission or pass such other order, as it may deem fit.

After scrutinizing the facts of the case, in view of the above legal position, the Court observed that in the instant case, the shares in the preliminary decree were declared in respect of the entire suit land and that the Local Commissioner was directed by the trial Court to suggest mode of partition in terms of the preliminary decree. 

Therefore, in the aforementioned circumstances, the report of the Local Commissioner was held by the Court to be not in consonance with the preliminary decree. 

Importantly, it was held by the Bench that even in the absence of any objections, it was the bounden duty of the trial Court to reject any such report, which on the face of it, was not in conformity with the preliminary decree. Thus, it was held, “it was beyond the competence of the Local Commissioner to exclude the area of road while suggesting the mode of partition.”

Petition was thus dismissed. 

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