Thursday, 25 May 2017

Guidelines for appointment of commissioner in case of partition of property

"The  reliance is  placed  upon the  decision  of  the  Apex
Court in the case of Shub Karan Bubna @ Shub Karan
Prasad Bub  vrs. Sita Saran Bubna and ors, reported in
AIR 2009 SC (Supp) 2863, to urge that the Commissioner,
in case of house property has to be appointed to effect the
partition by metes and bounds.   Upon submission of the
report by the Commissioner, the Court has to carry further
the proceedings and hearing the parties upon the report of
the   Commissioner. 
Decision of the Apex Court cited supra has laid down the
guidelines   in   paragraph   9.2   in   regard   to   the   immovable
property and the partition.   The said portion is reproduced
below. 
"9.2)   In   regard   to   immovable   properties   (other   than
agricultural   lands   paying   land   revenue),   that   is
buildings, plots etc. or movable properties:
(i) where the court can conveniently and without further
enquiry make the division without the assistance of any
Commissioner, or where parties agree upon the manner
of   division,   the   court   will   pass   a   single   decree
comprising the preliminary decree declaring the rights

of several parties and also a final decree dividing the
suit properties by metes and bounds. 
(ii) where the division by metes and bounds cannot be
made   without   further   inquiry,   the   court   will   pass   a
preliminary decree declaring the rights of the parties
interested in the property and give further directions as
may be required to effect the division. In such cases,
normally   a   Commissioner   is   appointed   (usually   an
Engineer,   Draughtsman,   Architect,   or   Lawyer)   to
physically   examine   the   property   to   be   divided   and
suggest the manner of division. The court then hears
the parties on the report, and passes a final decree for
division by metes and bounds.
The   function   of   making   a   partition   or   separation
according   to   the   rights   declared   by   the   preliminary
decree,   (in   regard   to   non­agricultural   immovable
properties   and   movables)   is   entrusted   to   a
Commissioner, as it involves inspection of the property
and examination of various alternatives with reference
to   practical   utility   and   site   conditions.   When   the
Commissioner   gives   his   report   as   to   the   manner   of
division,   the   proposals   contained   in   the   report   are
considered by the court; and after hearing objections to
the   report,   if   any,   the   court   passes   a   final   decree
whereby   the   relief   sought   in   the   suit   is   granted   by
separating the property by metes and bounds. It is also
possible   that   if   the   property   is   incapable   of   proper
division,   the   court   may   direct   sale   thereof   and
distribution of the proceeds as per the shares declared."
6] Without   following   the   aforesaid   guidelines,   the
trial   Court   has   passed   an   order   directing   the   Court
Commissioner to deliver the possession of the property to the
parties concerned upon preparing the report.  This is not the
method which is contemplated by the aforesaid guidelines
laid down by the Apex Court.  After submission of the report
by the Court Commissioner, the parties are to be given an
opportunity to raise objection and thereafter the final decree

proceedings can be concluded after hearing the parties.  In
view of above, the order impugned to the extent it directs the
Court Commissioner to deliver the possession to the parties
concern cannot be sustained and the same will have to be
set aside.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
WRIT PETITION NO. 4758 OF 2016 
Latabai Subhashrao Dahake,
V
Jayant Punjaji Takarkhede,

­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­­
CORAM: R. K. DESHPANDE, J.
    DATE     : 17th OCTOBER 2016
Citation: 2017(3) ALLMR 49

1] Rule made returnable forthwith.  
Heard   the   matter   finally   by   consent   of   the
learned counsels appearing for the parties.
2] The   challenge   in   this   petition   is   to   the   order
dated 15.06.2016 passed below Exh.18 by the trial Court
appointing   Court   Commissioner   in   the   final   decree
proceedings for partition of the property.   The order further

directs the Court Commissioner to deliver the possession of
the   suit   property   to   the   judgment   debtor   and   the   decree
holder respectively.
2] On 22.08.2016,  this Court had passed an order
as under;
"The  reliance is  placed  upon the  decision  of  the  Apex
Court in the case of Shub Karan Bubna @ Shub Karan
Prasad Bub  vrs. Sita Saran Bubna and ors, reported in
AIR 2009 SC (Supp) 2863, to urge that the Commissioner,
in case of house property has to be appointed to effect the
partition by metes and bounds.   Upon submission of the
report by the Commissioner, the Court has to carry further
the proceedings and hearing the parties upon the report of
the   Commissioner.   In   the   present   case,   the   Court   has
directly passed an order handing over the possession of
the properties alongwith the order of appointment of Court
Commissioner.
Issue   notice   for   final   disposal   of   the   matter,
returnable on 17.10.2016.
Service by R.P.A.D in addition to regular mode of
service.
In the meantime, the possession of the petitioner
over the property in dispute shall not be disturbed."
3] In response to the aforesaid order, the learned
counsel Shri A.D.Patil has appeared for the respondent in the
matter   and   raised   a   preliminary   objection   that   there   is   a
remedy of filing Civil Revision Application under Section 115
of Civil Procedure Code.  He further submits that in terms of

the decision referred to in the order passed by this Court,  it
is   for   the   Court   Commissioner   to   carry   out   the   further
proceedings by effecting the partition by metes and bounds
and by delivering the possession to the respective parties.
4] In   so   far   as   the   objection   regarding
maintainability of this writ petition is concerned,  obviously the
remedy under Section 115 of C.P.C is not available for the
reason that if the petition is allowed,  the proceedings before
the trial Court shall proceed further and it shall not come to
an end, as contemplated by proviso below Section 115 of
C.P.C.  Hence, the preliminary objection is rejected. 
5] So far as the merits of the matter are concerned,
the decision of the Apex Court cited supra has laid down the
guidelines   in   paragraph   9.2   in   regard   to   the   immovable
property and the partition.   The said portion is reproduced
below. 
"9.2)   In   regard   to   immovable   properties   (other   than
agricultural   lands   paying   land   revenue),   that   is
buildings, plots etc. or movable properties:
(i) where the court can conveniently and without further
enquiry make the division without the assistance of any
Commissioner, or where parties agree upon the manner
of   division,   the   court   will   pass   a   single   decree
comprising the preliminary decree declaring the rights

of several parties and also a final decree dividing the
suit properties by metes and bounds. 
(ii) where the division by metes and bounds cannot be
made   without   further   inquiry,   the   court   will   pass   a
preliminary decree declaring the rights of the parties
interested in the property and give further directions as
may be required to effect the division. In such cases,
normally   a   Commissioner   is   appointed   (usually   an
Engineer,   Draughtsman,   Architect,   or   Lawyer)   to
physically   examine   the   property   to   be   divided   and
suggest the manner of division. The court then hears
the parties on the report, and passes a final decree for
division by metes and bounds.
The   function   of   making   a   partition   or   separation
according   to   the   rights   declared   by   the   preliminary
decree,   (in   regard   to   non­agricultural   immovable
properties   and   movables)   is   entrusted   to   a
Commissioner, as it involves inspection of the property
and examination of various alternatives with reference
to   practical   utility   and   site   conditions.   When   the
Commissioner   gives   his   report   as   to   the   manner   of
division,   the   proposals   contained   in   the   report   are
considered by the court; and after hearing objections to
the   report,   if   any,   the   court   passes   a   final   decree
whereby   the   relief   sought   in   the   suit   is   granted   by
separating the property by metes and bounds. It is also
possible   that   if   the   property   is   incapable   of   proper
division,   the   court   may   direct   sale   thereof   and
distribution of the proceeds as per the shares declared."
6] Without   following   the   aforesaid   guidelines,   the
trial   Court   has   passed   an   order   directing   the   Court
Commissioner to deliver the possession of the property to the
parties concerned upon preparing the report.  This is not the
method which is contemplated by the aforesaid guidelines
laid down by the Apex Court.  After submission of the report
by the Court Commissioner, the parties are to be given an
opportunity to raise objection and thereafter the final decree

proceedings can be concluded after hearing the parties.  In
view of above, the order impugned to the extent it directs the
Court Commissioner to deliver the possession to the parties
concern cannot be sustained and the same will have to be
set aside.
7] In the result, the writ petition is allowed.   The
order   passed   by   the   executing   Court   below   Exh.   18   on
15.06.2016 to the extent directing the Court Commissioner to
hand over the possession to the parties concerned is hereby
quashed and set aside.  The trial Court to keep in mind the
procedure prescribed under Order XXVI, Rules 13 and 14 of
C.P.C read with the guidelines referred by the Apex Court
which are reproduced above.
Rule made absolute in above terms.   No order
as to cost.

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