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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How to appreciate evidence of expert valuer in land acquisition case?

Coming to the map Exh.34, which has been prepared by
PW2 Architect Arvind Trimbak Paradkar, since it bears his signature,
admittedly the area of the acquired house is 30.10 Sq. Mtrs.;
whereas the area stated in the said map Exh. 34 discloses the
measurement of the house as 42.90 Sq. Mtrs., and therefore, there is
variance in the area of the acquired house as stated in the award
and the said map Exh. 34. Moreover, the architect PW2 Arvind
Paradkar has no where stated in his deposition the date on which he
visited the acquired house and when and how he measured the said
house, as well as the manner of preparing the said map and the
method of preparation of area statement thereof, and the basis of
scale thereof is not mentioned in the said map and even the said
map discloses the stamp as Vastukala, Architect and Engineer,
Parbhani, and signed as PW2 Arvind Trimbak Paradkar as Architect,
but neither the said map Exh. 34 or deposition of PW2 Architect
Arvind Trimbak Paradkar discloses whether PW2 Arvind Paradkar is
proprietor or partner thereof, and all these shortcomings and lacunae
create suspicion about the said map Exh. 34, and further even the
area statement of the said map does not disclose the built up area
and open space of the said house.
18 Thus, it is amply clear from the testimony of PW2

Architect Arvind Paradkar, an expert witness, that he has not
narrated the contents of valuation report Exh. 33 and further the area
statement in the map Exh. 34 of the acquired house differ from the
area of the acquired house given in the award and even PW2 Arvind
Paradkar admitted that he has neither produced the documentary
evidence to show his expertise nor produced the District Scheduled
Rates and market value at the relevant time, and therefore, the said
expert evidence i.e. the testimony of PW2 Arvind Paradkar and
valuation report Exh. 33 as well as map Exh. 34 come under the
doldrums and do not take the appellant's case any further in
constructive manner to consider the same for enhancement in the
compensation as claimed by the appellant.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY,
AURANGABAD BENCH, AURANGABAD
FIRST APPEAL NO. 286 OF 1994
1 Masaji s/o Gyanoji Thoke,

V
 The State of Maharashtra,

CORAM : SHRIHARI P. DAVARE, J.

DATE OF PRONOUNCING
THE JUDGMENT : 07.3.2011
Citation: 2011(3)ALLMR161, 2011(3)BomCR633, 2011(113)BOMLR1070

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