Bachi Devi Vs. Raghawendra Shahi - Court Judgment

Excerpt:
civil procedure code, 1908, section 115 - revision against the order where petitioner's objection regarding the pleader-commissioner's report is rejected--plea of petitioner is to set aside the commissioner's report and appoint a fresh pleader-commissioner--prior direction of this court is carried out, this is the satisfaction of subordinate judge--being a question of fact cannot be considered in revisional jurisdiction--objection regarding the report is in the nature of first appeal--before high court, this is really in nature of second appeal-- only issue relating to law and principle can be entertained--impugned order upheld and revision application dismissed. - - while assailing the validity of the impugned order, learned counsel submitted that the pleader-commissioner has failed to carry out the directions of this court passed on 22-4-85, in s. interest of both the parties shall be satisfied by maintaining the pattibandi in the report of the pleader-commissioner submitted to the court of the district judge, muzaffarpur, with the modification that afresh division of plot nos. it is manifest from a plain reading of the impugned order that the learned subordinate judge has considered the pleader-commissioner's report and has satisfied himself that the directions of the high court have been carried out. it has been held therein that the objections to the pleader-commissioner's report is really in the nature of a first appeal and the appeal before the next higher court would really be in the nature of a second appeal with the well known limitations of jurisdiction of the second appellate court. s.k. katriar, j.1. heard mr. brijendra nath, learned counsel for the petitioner.2. this civil revision is directed against the order dated 29-4-99/1-5-99 passed by the learned subordinate judge-i, muzaffarpur, in partition suit no. 75/64 whereby he has rejected the objections of the petitioner with respect to the pleader-commissioner's report. while assailing the validity of the impugned order, learned counsel submitted that the pleader-commissioner has failed to carry out the directions of this court passed on 22-4-85, in s.a. no. 63/76 smt. saraswati devi and anr. v. mostt. joti kuer and ors. whereby the judgment and decree in question were up held with certain modifications. a copy of the judgment of this court is marked as annexure-2 to this civil revision application. learned counsel relies on the following directions of this court passed in the aforesaid second appeal.adjudication of the issues raised in the appeal has not become academic. interest of both the parties shall be satisfied by maintaining the pattibandi in the report of the pleader-commissioner submitted to the court of the district judge, muzaffarpur, with the modification that afresh division of plot nos. 1, 24, 26, 51, 54 and 56 shall be made from south to north maintaining the area and compactness allotted to the parties respectively. now, a final decree shall be prepared according to the pattibandi with the modification indicated above.3. in the submission of the learned counsel, this direction has not in its true letter and spirit been carried out by the pleader commissioner and therefore, the pleader commissioner's report should be set aside and a new pleader commissioner may be appointed to carry out the directions of this court.4. having considered the submissions of the learned counsel for the petitioner, i am convinced that this civil revision application has to be dismissed. it is manifest from a plain reading of the impugned order that the learned subordinate judge has considered the pleader-commissioner's report and has satisfied himself that the directions of the high court have been carried out. these being questions of facts, it is not possible for this court to consider those questions in civil revisional jurisdiction. the division bench judgment reported in air 1938 patna 104 jugeshwar singh v. rijhan singh, also comes in the way of the petitioner. this court has laid down that the objections of the parties on the pleader-commissioner's report before the first court is in the nature of an appeal. the high court was dealing with a first appeal and observed that such objections relating to the pleader-commissioner's report before the high court were really in the nature of a second appeal and, therefore, only issues relating to law and principles could be entertained. the position in the present case is more difficult for the petitioner, the present proceeding being in civil revisional jurisdiction.5. i have had the occasion to deal with a similar issue recently in c.r. no. 2052 of 1996, shri ram briksh mistry v. mostt. sakuntala devi, disposed of by judgment dated 29-6-99, paragraph 5.1 of which is set out hereinbelow:5.1. fourthly, the pleader-commissioner's report has been fully reviewed by the execution court which was in the nature of an appeal. therefore, the aforesaid reported judgment relied upon by the learned counsel for the opposite parties applies on all four to the facts and circumstances of the present case. it has been held therein that the objections to the pleader-commissioner's report is really in the nature of a first appeal and the appeal before the next higher court would really be in the nature of a second appeal with the well known limitations of jurisdiction of the second appellate court. the division bench in the aforesaid reported judgment was dealing with a first appeal, and the case in hand is under the civil revisional juris-diction. therefore, the petitioners herein must remind themselves of this court's jurisdiction under section 115, c.p.c. only questions of law and principles can be considered. no such question has been raised on behalf of the petitioners before me. the following portions of the judgment appearing at page 105 of the report illumines the position:.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 facts. the power to review the decision of the commissioner in 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 decision has gone wrong on some question of principle in making the final allotment and in drawing up the decree, and i think much money and trouble would be saved to parties to partition suits if they realised that principle and they would in the majority of cases refrain from coming before the high court in an attempt to upset the allocation of the takhtas...6. in the result, this civil revision application is dismissed and the impugned order dated 29-4-99/1-5-99 is hereby upheld.

Judgment:

S.K. Katriar, J.

1. Heard Mr. Brijendra Nath, learned Counsel for the petitioner.

2. This civil revision is directed against the order dated 29-4-99/1-5-99 passed by the learned Subordinate Judge-I, Muzaffarpur, in Partition Suit No. 75/64 whereby he has rejected the objections of the petitioner with respect to the Pleader-Commissioner's report. While assailing the validity of the impugned order, learned Counsel submitted that the Pleader-Commissioner has failed to carry out the directions of this Court passed on 22-4-85, in S.A. No. 63/76 Smt. Saraswati Devi and Anr. v. Mostt. Joti Kuer and Ors. whereby the judgment and decree in question were up held with certain modifications. A copy of the judgment of this Court is marked as Annexure-2 to this civil revision application. Learned Counsel relies on the following directions of this Court passed in the aforesaid Second Appeal.

Adjudication of the issues raised in the appeal has not become academic. Interest of both the parties shall be satisfied by maintaining the Pattibandi in the report of the Pleader-Commissioner submitted to the Court of the District Judge, Muzaffarpur, with the modification that afresh division of plot Nos. 1, 24, 26, 51, 54 and 56 shall be made from south to north maintaining the area and compactness allotted to the parties respectively. Now, a final decree shall be prepared according to the Pattibandi with the modification indicated above.

3. In the submission of the learned Counsel, this direction has not in its true letter and spirit been carried out by the Pleader Commissioner and therefore, the Pleader Commissioner's report should be set aside and a new Pleader Commissioner may be appointed to carry out the directions of this Court.

4. Having considered the submissions of the learned Counsel for the petitioner, I am convinced that this civil revision application has to be dismissed. It is manifest from a plain reading of the impugned order that the learned Subordinate Judge has considered the Pleader-Commissioner's report and has satisfied himself that the directions of the High Court have been carried out. These being questions of facts, it is not possible for this Court to consider those questions in civil revisional jurisdiction. The Division Bench judgment reported in AIR 1938 Patna 104 Jugeshwar Singh v. Rijhan Singh, also comes in the way of the petitioner. This Court has laid down that the objections of the parties on the Pleader-Commissioner's report before the first Court is in the nature of an appeal. The High Court was dealing with a first appeal and observed that such objections relating to the Pleader-Commissioner's report before the High Court were really in the nature of a second appeal and, therefore, only issues relating to law and principles could be entertained. The position in the present case is more difficult for the petitioner, the present proceeding being in civil revisional jurisdiction.

5. I have had the occasion to deal with a similar issue recently in C.R. No. 2052 of 1996, Shri Ram Briksh Mistry v. Mostt. Sakuntala Devi, disposed of by judgment dated 29-6-99, paragraph 5.1 of which is set out hereinbelow:

5.1. Fourthly, the Pleader-Commissioner's report has been fully reviewed by the execution Court which was in the nature of an appeal. Therefore, the aforesaid reported judgment relied upon by the learned Counsel for the opposite parties applies on all four to the facts and circumstances of the present case. It has been held therein that the objections to the Pleader-Commissioner's report is really in the nature of a first appeal and the appeal before the next higher Court would really be in the nature of a second appeal with the well known limitations of jurisdiction of the Second Appellate Court. The Division Bench in the aforesaid reported judgment was dealing with a first appeal, and the case in hand is under the civil revisional juris-diction. Therefore, the petitioners herein must remind themselves of this Court's jurisdiction under Section 115, C.P.C. Only questions of law and principles can be considered. No such question has been raised on behalf of the petitioners before me. The following portions of the judgment appearing at page 105 of the report illumines the position:.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 facts. The power to review the decision of the Commissioner in 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 decision has gone wrong on some question of principle in making the final allotment and in drawing up the decree, and I think much money and trouble would be saved to parties to partition suits if they realised that principle and they would in the majority of cases refrain from coming before the High Court in an attempt to upset the allocation of the takhtas...

6. In the result, this civil revision application is dismissed and the impugned order dated 29-4-99/1-5-99 is hereby upheld.