In a First Appeal regarding a partition suit, the Patna High Court dismissed the claim to set aside the decree based on valuation and classification objections. The Court held that factual disputes are for the trial judge, not the High Court.
The First Appeal is dismissed and the impugned judgment and final decree are confirmed.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
Patna High Court FA No.344 of 1979 dt.03-01-2013 1
IN THE HIGH COURT OF JUDICATURE AT PATNA
First Appeal No.344 of 1979
(Against the judgment and final decree dated 19.01.1979 passed by 6th Additional Sub Judge, Siwan in Partition Suit No.16 of 1951/1978).
=========================================================== Janardan Tewary & Ors
.... .... Appellant/s Versus Jagdish Tewary & Ors .... .... Respondent/s =========================================================== Appearance : For the Appellant/s : Mrs. Archana Meenakshee, Advocate For the Respondent/s : None =========================================================== CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO ORAL JUDGMENT
Date: 03-01-2013
Mungeshwar Sahoo, J.
Patna High Court FA No.344 of 1979 dt.03-01-2013 2
22.04.1959, the Pleader Commissioner filed supplementary report which was confirmed on 18.01.1960. Against the said judgment and final decree, the defendant nos.1 to 5 and 6 filed Civil Appeal No.255 of 1960. The said appeal was dismissed by the High Court, Patna on 04.08.1966. While dismissing the appeal, the High Court directed the trial court to prepare a separate takhta of defendant nos.1 to 5 from defendant nos.7 to 13 with respect to khata nos.57 and 58. Pursuant to the said direction, another Pleader Commissioner was appointed. The Pleader Commissioner separated the takhta for defendant nos.1 to 5 and submitted his report on 05.09.1976. Against the said report, the appellants who were defendant nos.7 to 13 filed objection. After considering the said objection, the impugned judgment was passed.
Patna High Court FA No.344 of 1979 dt.03-01-2013 3
Patna High Court FA No.344 of 1979 dt.03-01-2013 4
impugned judgment and final decree is liable to be set aside?”
Patna High Court FA No.344 of 1979 dt.03-01-2013 5
submission of the learned counsel that the adjoining land to khata no.57 has been sold at Rs.460 per kattha is concerned, it may be mentioned here that because of less valuation given by the Pleader Commissioner to the suit property will not vitiate the report on that ground alone unless the appellant show that because of less valuation, any prejudice has been caused to the appellant because from perusal of the Pleader Commissioner’s report, it appears that most of the lands are comprised within khata no.57. All the plots have been valued by the Pleader Commissioner. No evidence has been adduced by any of the parties to show that the classification made by the Pleader Commissioner is wrong. It may be mentioned here that the earlier Pleader Commissioner’s report which was confirmed was upheld by the High Court. So far not giving share in some of the plots to the appellants is concerned, it may be mentioned here that there are as many as 47 plots in Schedule II in khata no.57. The share of defendant nos.1 to 5 is only upto 1 Anna 4 Pai. Therefore, some of the plots have been given in its entirety to the defendant nos.1 to 5. While allotting the takhta to the defendant nos.1 to 5, the Pleader Commissioner has considered the compactness and also possession of the defendant nos.1 to 5. For example, it may be mentioned here that the Pleader Commissioner found that plot no.2515 of khata no.57 was in possession of grandfather of defendant nos.1 to 5.
Patna High Court FA No.344 of 1979 dt.03-01-2013 6
AIR 1938 Patna 104 , a Division Bench of this court has held as follows:
“… The Subordinate Judge when he makes the final decree considers, first, the report of the Commissioner; the Commissioner has been to the spot, has heard the contentions of the parties and the evidence which the parties produced before him and then to the best of his ability directed the partition by metes and bounds, taking into consideration the element of compactness, the element of equality, the nature of the land to be divided and many other circumstances which he must take into account and then submits his report to the Subordinate Judge. It is then open to any party, who is dissatisfied with the takhta allotted, to ask the Subordinate Judge to disregard the report of the Commissioner; and the Subordinate Judge again reviews the facts and corrects the award of the Commissioner.
Therefore a first appeal to this Court from the order of the Subordinate Judge is really in the nature of a second appeal in which only questions of law and principle can be considered. It is quite impossible for the Court to go down to the area in question, inspect the land, hear the various objectors and in fact review the decision of the Commissioner on fact. The power to review the decision of the Commissioner on the facts is a matter for the Subordinate Judge, and his view of the facts ought to be final as a first appellate decision on fact. The High Court should only interfere when it is shown that the Judge in his
Patna High Court FA No.344 of 1979 dt.03-01-2013
7
decision has gone wrong on some question of principle in making the final allotment and in drawing up the decree…”.
Bench of this court in the case of Ambika Bhawani Devi vs. Gouri Kumari Devi, AIR(34) 1947 Patna 271 held that where a Commissioner is appointed to effect partition, the power to review his decision on the facts is a matter for the Subordinate Judge who passed the final decree, and his view of the facts ought to be final, unless some question of principle in making the final allotment and drawing up the decree is involved.
(Mungeshwar Sahoo, J)
Saurabh/A.F.R.
3 issues framed by the court
Whether the impugned judgment and final decree in a partition suit can be set aside based on objections regarding valuation and classification by the Pleader Commissioner.
Whether a First Appeal against a partition decree involves factual review or is restricted to questions of law and principle.
Whether unequal allotment of plots or lower valuation vitiates the Pleader Commissioner's report without evidence of prejudice.
Colour shows how this judgement treated each authority
Jugeshwar Singh vs. Rijhan SinghApplied¶29
Jugeshwar Singh vs. Rijhan Singh, AIR 1938 Patna 104 · Who else cites this
Ambika Bhawani Devi vs. Gouri Kumari DeviApplied¶34
Ambika Bhawani Devi vs. Gouri Kumari Devi, AIR(34) 1947 Patna 271 · Who else cites this
Janardan Tewary & Ors
Jagdish Tewary & Ors
Mungeshwar Sahoo
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
