Sri. Durga Prasad Roy Chowdhury vs Sri. Ashoke Kumar Roy Chowdhury
2023 Latest Caselaw 7195 Cal

                  IN THE HIGH COURT AT CALCUTTA

                    CIVIL APPELLATE JURISDICTION

                               APPELLATE SIDE

PRESENT:

THE HON'BLE JUSTICE HARISH TANDON
             And
THE HON'BLE JUSTICE PRASENJIT BISWAS

                               FAT 184 OF 2022


                    Sri. Durga Prasad Roy Chowdhury
                                     - Vs -
                  Sri. Ashoke Kumar Roy Chowdhury


For the appellant          :      Mr. Soumik Ganguly, Adv.
                                  Mr. Sayan Ray, Adv.
                                  Ms. Chandana Chakraborty, Adv.


For the respondent        :       Mr. Anjan Dutta , Adv.

Hearing concluded on       :      05.09.23

Judgment on                :     17.10.2023



Prasenjit Biswas, J:-

1. The order dated 16.06.2022 passed by the learned Civil

Judge (Senior Division), 2nd Court, Barasat, North 24 Parganas, in Title

Suit No. 779 of 2017 whereby learned Courtaccepted the report of the

Pleader Commissioner overruling the objections raised by the appellant is

under challenge in this appeal.

2. Only question which remains for consideration is of a garage

situated in the ground floor left by the deceased and is not partitioned by

the Partition Commissioner.

3. Learned Counsel appearing on behalf of the

appellant/defendant submitted before us interalia that there are serious

errors and discrepancies in the report of the commissioner and the

learned Trial Court committed error and illegality by accepting the report

and directing for drawing up final decree in terms of the said report. It is

further submitted by the learned Counsel that the report lacks proper

quantum of land and structure allotted to the appellant and the

respondent. It is further assailed by the learned Advocate that the report

of the Pleader Commissioner is vitiated due to non-mentioning of

valuation of the suit property and allotment of shares of the parties which

is required for fixing the stamp duty which would be paid by the parties

at the time of drawing up of the final decree.

4. Our attention is drawn by the learned Counsel that although

the Trial Court recorded the objection raised by the appellant to the

report submitted by the Pleader Commissioner but learned Court failed to

give any reason or satisfaction as to why the report is correct and well -

defined in relation to the allotment of shares of the parties. It is further

submitted by the learned Advocate at the time of hearing that the

existence of the garage situated in the ground floor has not been indicated

in the report submitted by the commissioner and more so, it has not been

partitioned by the Pleader Commissioner and it remains joint.

5. At the time of hearing learned Counsel appearing for the

respondent admitted that the garage situated in the ground floor has not

yet been partitioned. He further submitted that the report submitted by

the commissioner is correct and there is no error in the same. It is further

submitted by the learned Counsel that the areas allotted to the

respondent/plaintiff is less than that of allotted to the defendant but he

does not need the wealthy money. So, as per his submission report

submitted by the Pleader Commissioner cannot be rejected on the ground

that wealthy money has not been calculated.

6. We have extensively gone through the report submitted by

the Pleader Commissioner and the impugned order passed by the learned

Trial Court. We also have considered the rival submissions advanced by

both the parties.

7. It appears from the report submitted by the Pleader

Commissioner that the respondent is occupying the ground floor and the

appellant is occupying the first floor. It is further lighted from the report

that the valuation has not been ascertained by the commissioner which is

required for assessment of the Court Fees to be paid at the time of

drawing up of the final decree. Although, both the parties admitted the

existence of a garage in the ground floor, there is no whispering a bout the

garage in the report submitted by the commissioner and it remains joint

and has not yet been partitioned. It further appears from the impugned

order that although the learned Trial Court recorded the objection of the

appellant in acceptance of the report filed by the Pleader Commissioner

but there is no such reason or satisfaction of the Court as to why the

report of the Pleader Commissioner is correct and well-define as well as

allotment of shares to the parties is just and correct.

8. In the present case it appears that there is a serious

discrepancy regarding measurement taken by the commissioner as stated

by him in his report. The Trial Court refused to attach importance to the

discrepancies highlighted by the appellant and came to the conclusion

that the report of the commissioner is correct, as well as share allotted to

the parties is also correct and well-define. We may observe on

consideration of the case of the parties, the nature of controversy raised

by the case and other material facts and circumstances and felt that in

the interest of justice fresh investigation in respect of the suit properties

is necessary. It ought to have ensured that the report of the commissioner

should be absolutely free from blemish.

9. Order 26 Rule 10(2) of CPC provides that the report of the

commissioner shall form part of the record. It is open to those of the

parties to examine the commissioner in respect of the matters referred to

and mentioned to him. The word "examination" referred to in Rule 10(2)

CPC is to be understood in the context of the word "examination" in the

Evidence Act, which includes examination-in-chief, cross-examination

and re-examination. If the parties have no grievance against the report of

the commissioner question of examining the commissioner would not

arise but once objection is raised by the party to the report of the

commissioner, in order to substantiate the said objection a prayer may be

made before the Court for not accepting the report submitted by the

commissioner, along with a prayer for giving him permission to examine

the commissioner, attaching any of the matters referred to by him or

mentioned in the report. Whenever, objection is raised to the report of the

commissioner contended that the report is incorrect, and to substantiate

such a stand, parties normally examine the commissioner and cross-

examine all those aspects in the light of the objection taken.

10. If the parties are successful in discrediting the report

entirely or a portion of the report, the respect of which the party has

grievance then the Court in its discretion may reject the report of the

commissioner but simultaneously it is also true that if in the cross-

examination nothing is substantiated over the objection raised by the

parties it is open to the Court to accept and act on the report submitted

by the commissioner. It appears that the learned Trial Court committed

serious error in accepting the report without considering the evidence

adduced by the Pleader Commissioner wherein he stated about the

existence of garage with shutter in the ground floor of the suit property.

11. From the report submitted by the Pleader Commissioner it

appears that he has not mentioned about the existence of garage in the

ground floor and it has not been partitioned by the Advocate

Commissioner as admitted by both the parties at the time of hearing of

this case. The Trial Court decreed the suit in final form by accepting the

report of the Pleader Commissioner without considering the facts that it is

vitiated due to non-mentioning of the valuation of the suit property and

valuation of the share of the parties, which is required for fixing stamp

duties required to be paid by the parties at the time of drawing up the

final decree.

12. For the above reasons as mentioned in the above

paragraphs, we are of the opinion that the impugned order dated

16.06.2022 passed by the learned Trial Court is vitiated by an error of law

and is not sustainable under the provisions as enshrined in the Act.

13. The impugned order dated 16.06.2022 passed by the

learned Trial Court is hereby set aside.

14. The instant appeal be and the same is hereby allowed. The

Pleader Commissioner is, therefore, requested to go further into the

matter and determine the share of the garage of the parties therein. The

commissioner will suggest the valuation of the garage situated in the

ground floor and what will be the share of the parties therein. For this

purpose, Pleader Commissioner will be at liberty to summon the parties

to the suit. The remuneration of the commissioner will be fixed by the

Trial Court and Trial Court also fixes the time for filing of the report by

the commissioner.

15. However, there is no order as to costs.

16. The appeal, being No. FA 184 of 2022, is hereby allowed.

Consequently, connecting application, if any, is hereby disposed of

accordingly.

17. There shall, however, be no order as to costs.

18. Urgent Photostat certified copies of this judgment, if applied

for, be made available to the parties subject to compliance with requisite

formalities.

I agree.

(Harish Tandon, J.)

(Prasenjit Biswas, J.)