DAMODAR REDDY Vs. M MOHAN REDDY

JUDGEMENT

(1.) Shiva Reddy and Chandra Reddi were two brothers. Shiva Reddy died, leaving behind him his son Damodar Reddy. When he was aged 19 years, Damodar Reddy filed a suit being O.S.No.104/1/1358 Fasli, in the Court of II Additional Judge, City Civil Court, Hyderabad, against his paternal uncle, Ranga Reddy, and his sons for partition of the suit schedule lands. The suit was presented on 06-06-1947. Two months and a week thereafter, the country got independence and it was partitioned. About a decade thereafter, the State in which the suit was filed, was trifurcated. Few decades thence, the District in which the suit was pending, was bifurcated. The original plaintiff and the 1st defendant died. Even after six decades, the properties remained unpartitioned. It would tell, either upon the perseverance of the parties, or defect in the system, or partly both. O.S.No.104/1/1358 Fasli was re-numbered as O.S.No.27/1 of 1955. A preliminary decree was passed in the year 1955. C.C.C.A.No.3 of 1963 was filed before this Court against the preliminary decree. The appeal was allowed and the matter was remanded to the trial Court. Thereafter, the suit was re-numbered as O.S.No.50 of 1965. After remand, a preliminary decree was passed on 11-08-1970. After the preliminary decree became final, the legal representatives of the original plaintiff, the petitioners herein, initiated final decree proceedings. An Advocate Commissioner was appointed by the trial Court, somewhere in the year 1985. He submitted a report. Not satisfied with the report, and certain steps taken by the Commissioner, the respondents insisted appointment of another Commissioner. Accordingly, a second Commissioner was appointed in June 1987. It took one-and-half decades for the Commissioner, to submit the report, dividing the property into two equal shares, in terms of the preliminary decree. The 1st respondent herein filed I.A.No.12 of 2004, for summoning the Commissioner for cross-examination. Identical application, being I.A.No.84 of 2003, was also filed by some of the other respondents. The petitioners opposed the application. Through order dated 28-02-2006, the trial Court allowed the I.A. The same is challenged in this C.R.P. Sri M.S.Ramchandra Rao, learned counsel appearing for the petitioners submits that the effort of the respondents in proposing to cross-examine the Commissioner is only to protract the proceedings and that there are no bona fides on their part. He contends that the report submitted by the Commissioner is a material, which the Court can take into account, while passing the final decree, and if the respondents have any objection to it, they can certainly put forward the same. He submits that the respondents did not co-operate with the Commissioner, in spite of his best efforts, and ultimately, when the report is submitted, it is being attacked on non-existent and dubious grounds. Sri Y.Srinivasa Murthy, learned counsel, appeared for the 1st respondent and Sri Murali Narayan Bung, for respondent No.4, submit that there are serious lapses and inconsistencies in the report submitted by the Commissioner, and that the same can be clarified, if only the Commissioner is examined as a witness. They point out that much delay took place at the hands of the Commissioner, and the respondents cannot be blamed for it. Submissions, touching on merits have also been made. None appeared for respondents 2 and 3. Several decades after the suit came to be filed, it is at the stage of final decree proceedings. Two generations have passed, ever since the suit was instituted. The adjudication of the suit itself did not present, much of a problem. Plaintiff on the one hand, and the defendants on the other hand, represented two branches of the family. Much controversy was, as to the properties that are available for partition with the passing of preliminary decree, this also stood resolved. Appointment of a Commissioner under Rule 13 of Order 26 read with Rule 18(2) of Order 20 C.P.C., is a step, in the direction of providing assistance to the Court, in passing the final decree. The basic obligation to divide the properties and allot them to the sharers, in accordance with the preliminary decree rests with the Court. Since the process may involve inspection of properties, assessment of their values etc., Commissioners are appointed to undertake such a work, on behalf of the Court. Rule 18(2) of Order 20 mandates that where the Court cannot partition or spread the properties, straightaway, based upon a preliminary decree, and it finds that further enquiry is needed, it shall pass a final decree and issue further directions in the matter. In other words, in case, where the Court can find itself convenient to;

(2.) Rules 13 and 14 of Order 26 C.P.C., provide for issuance of commissions, to divide the properties into requisite parts and the allotment of shares to the parties. The Rules read as under:

(3.) Order 26 contemplates appointment of Commissioners for several purposes, such as commissions to examine witnesses (Rules 1 to 8), commissions for local investigations (Rules 9 and 10), commissions for scientific investigation for sale of movable property (Rules 10A, 10B and 10C), commissions to examine accounts (Rules 11 and 12), commissions to make partitions (Rules 13 and 14). Of the various categories of Commissioners, those appointed for local inspection are made liable to be examined as witnesses. Rule 10 (2) reads as under: