Judgment:
P.K. Tripathy, J.
1. Order passed on 23.8.2002 by the Civil Judge (Senior Division), Berhampur in Final Decree Title Suit No. 120 of 1983 is the subject matter of dispute in this civil revision. Plaintiff in that suit is the petitioner whereas the defendants are the opposite party members. Admittedly a preliminary decree has been granted in that suit, inter alia, for the relief of partition. As per the impugned order learned Civil Judge rejected the objection raised by the petitioner to the acceptability of the report of the Amin Commissioner relating to allotment of shares for the purpose of final decree, hence this revision.
2. It be noted that, petitioner had also earlier approached this Court in Civil Revision No. 526 of 2001 against the order passed on 19.9.2001 in the self-same suit. By that order the Court below had denied opportunity to cross-examine the Amin Commissioner. On 5.2.2002 this Court disposed of that civil revision by setting aside the impugned order and directing the Court below to afford opportunity of hearing in terms of the provision in Order 26, Rule 14, of the Code of Civil Procedure, 1908 (in short, 'the Code'). As it appears from the impugned order, the Court below complied with that direction and provided opportunity to the petitioner to cross-examine the Amin Commissioner so also to adduce his evidence as against the validity/acceptability of the report of the Amin Commissioner.
3. Objection raised by the Plaintiff/petitioner relating to not granting him a preferential share, i.e., a higher share, he being the eldest son, non-allotment of specific properties from out of the items in the different schedules was considered by the Court below and as per the impugned order rejected such contentionon the ground that the law governing the parties does not provide for grant of excess share to the eldest son, properties were divided by the Commissioner in terms of the preliminary decree and keeping the valuation of each of the item of the properties of the plaint schedule besides considering the question of convenience of each of the parties. The Court below also did not find any merit in the objection raised nor any evidence in support thereof. Accordingly, the Court below rejected the objection raised by the petitioner.
4. In course of the hearing of the civil revision learned counsel for the opposite parties raised a contention that in view of the ratio in the case of Digambar Satpathy and Ors. v. Shyamsundar Das and Ors., 77 (1994) CLT 375, a civil revision is not maintainable against an order of the impugned nature inasmuch as the report of the Amin Commissioner after being accepted forms part of the decree and the final decree is an appealable order. In that respect learned counsel for the petitioner referred to and relied on the cases of Chaitan Das v. Smt. Purnabasi Pattnayak and Ors., AIR 1988 Orissa 52; and Shankar Balwant Lokhande (dead) by L.Rs. v. Chandrakant Shankar Lokhande and Anr., AIR 1996 SC 1211, in support of his contention on maintainability of Civil Revision. In reply learned counsel for the opposite parties also relied on the case of Hameed Joharan (dead) and Ors. v. Abdul Salam (dead) by L.Rs. and Ors., (2001) 7 SCC 573 : 2001 (6) Supreme 55.
In the case of Chaitan Das (supra) this Court has stated that where there is a violation of the provision of Order 26, Rule 18 of the Code, then acceptance of the report of the Amin Commissioner in the final decree proceeding is subject to scrutiny by the Court under Section 115 of the Code. Admittedly, in the present case there is no such allegation of procedural lapses committed by the Amin Commissioner, therefore, under the given fact and circumstances as involved in the present case, the said ratio has no applicability.
In the case of Shankar Balwant Lokhande (supra) while considering the question of starting point of limitation for the purpose of instituting execution proceeding against a final decree, the Apex Court held that acceptance of the Amin's report in a final decree proceeding does not terminate the proceeding relating to final decree until the stamp papers are supplied and the final decree is signed and sealed and therefore, limitations will not start from the order made relating to final decree till the date of signing on the stamp papers. In that context their Lordships have interpreted the term 'final decree. In that context the Apex Court in the case of Hameed Joharan (supra) referred to the above case of Shankar Balwant Lokhande (supra) and took note of the facts situations in that case by stating that :
'20. ....... The factual situation of Shankar B. Lokhande's case (supra) however is completely different since there was no final decree at all but only a preliminary decree. Paragraph 10 of the report at page 419 makes the situation amply clear. Paragraph 10 reads as below :'10. As found earlier, no executable final decree has been drawn working out the rights of the parties dividing the properties in terms of the shares declared in the preliminary decree. The preliminary decree had only declared the shares of the parties and properties were liable to be partitioned in accordance with those shares by a Commissioner to be appointed in this behalf. Admittedly, no Commissioner was appointed and no final decree had been passed relating to all.''
Examining the factual position as well as the legal issue the Apex Court in the case of Hameed Joharan (supra) held that limitation is to run from the date of passing order for drawing of the final decree in the stamp papers and not from the date on which the stamp papers are filed.
In the case of Digambar Satpathy (supra) the fact before this Court was that the Commissioner's report was accepted by the Original Court and it ordered to draw the final decree on the basis of the report of the Commissioner which was accepted on record. Under such circumstance this Court held that the Commissioner's report becomes a part and parcel of the final decree and such decree is appealable and not subject to scrutiny of the High Court under Section 115 of the Code.
5. It thus appears from the position of law enunciated in the above cited decisions that though the revisional jurisdiction can be invoked to consider illegality or procedural lacuna, if any, in the conduct of the Amin Commissioner if that was failed to be taken note by the Court below by improper exercise of the jurisdiction vested in that Court, but once the report of the Commissioner has been accepted on merit, then the factual finding in that respect is not subject to scrutiny of the revisional Court in the absence of jurisdictional error or illegality because appellate forum is provided in the Code as against a final decree.
6. In the present case petitioner emphasises on the alleged mistake committed by the Commissioner in the manner already indicated. That is essentially a factual controversy and when the Amin's report has already been accepted, the matter is to be subject to the scrutiny of appellate forum and not of the revisional forum. Under such circumstance the revision does not bear any merit so as to interfere with the impugned order. Accordingly, the civil revision stands dismissed. No cost.