Whether court commissioner report can be relied on if notice is not served to one of parties?

In view of the principle enunciated in these decisions, law is well settled that Rule 18 of Order 26 is mandatory. It is the duty of the court to direct that the parties to the suit shall appear before the survey knowing commissioner in person or by their agents or pleaders at the time of local investigation. In the absence of notice by the court, notice issued by the commissioner to the parties shall be deemed to be sufficient compliance. If no notice is served on any of the parties to the suit to appear before the survey knowing commissioner at the time of local investigation, the result of such local investigation, namely, the report and the map, cannot be accepted as evidence.

IN THE HIGH COURT OF ORISSA

Civil Revn. No. 461 of 1983

Decided On: 13.05.1986

 Chaitan Das Vs. Smt. Purnabasi Pattnayak and Ors.

Hon'ble Judges/Coram:

K.P. Mohapatra, J.

Citation: AIR 1988 Ori. 52,

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Whether Advocate commissioner can be appointed for partition of house property?

 After passing the final decree, it is open to any one of the parties to initiate proceedings for passing a final decree. The Court after taking cognizance of the final decree application is obliged to proceed in accordance with Order XXVI Rule 13 of the Code of Civil Procedure. The Court would appoint an Advocate Commissioner to partition the property by metes and bounds. The Commissioner appointed for such purpose acts as the authorised officer of the Court and as such he is duty bound to distribute the property among the parties taking into account their respective shares and in the light of the direction given by the Court in the warrant of appointment on the basis of the preliminary decree. Rule 14 of Order XXVI contained a legislative mandate that the Commissioner would allot such share to the parties, meaning thereby joint property should be divided in specie and each one of the sharers should be given a specific item. Sub Rule (2) of Rule 14 of Order XXVI mandates that the Commissioner shall prepare and sign the report apportioning the share of each parties by metes and bounds. This makes the position very clear that the Commissioner is obliged to effect physical division of property into two or more shares. Since a co-owner is entitled, as a matter of right, to partition the co-ownership property, he is also entitled to claim allotment of a specified extent of property to him. The possible difficulty to the other sharers in case the property is divided into two or more shares, cannot be a ground to deny physical division of property and separate allotment to the co-owners in accordance with the share position.

Madras High Court

K. Vijayalakshmi vs K. Sashikanth 

Citation: 2015(1)CTC73, 2014-5-LW481, (2014)8MLJ272

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Evidence led by party Vs Findings of court commissioner

Our attention is also drawn by the learned Counsel for the Defendants, to the copy of the report of Advocate Commissioner (Annexure P-2) in which the Advocate Commissioner has reported that the Defendants were found in possession of the disputed property.

16. However, in our view, Advocate Commissioner's report, in the present case, is against the weight of the oral and documentary evidence on record which sufficiently proves that Plaintiff was in possession over plot No. 358, and for several years he was paying the house tax as was found by the trial court on the basis of house tax receipts and extracts of house tax Assessment Register. It is not disputed that plot No. 357 belonging to the Defendants was in south of plot No. 358, and house of the Defendants was situated over their plot. The trial court has decreed the suit only in respect of plot No. 358.

Advocate Commissioner's report was against weight of oral and documentary evidence on record which sufficiently proved that Plaintiff was in possession over suit property and he was paying house tax - No infirmity in impugned order - Appeal dismissed.

IN THE SUPREME COURT OF INDIA

Civil Appeal No. 666 of 2015 (Arising out of S.L.P. (C) No. 8008 of 2009)

Decided On: 27.01.2015

 Zarif Ahmad and Ors. Vs. Farooq

Hon'ble Judges/Coram:Dipak Misra and Prafulla C. Pant, JJ.

Citation; AIR 2015 SC1236,(2015) 13 SCC673

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