DHADI BARIK Vs. ARJUN BARIK

JUDGEMENT

(1.) This revision is directed against the order passed by the learned Sub-Judge Kendrapara directing the parties in the final decree proceeding of Title Suit No. 25 of 1969 for partition to adduce evidence in order to substantiate objection to the report, map and allotment sheets prepared by the Civil Court Commissioner. The plaintiffs are the petitioners.

(2.) In the suit for partition a preliminary decree was passed defining the share of the plaintiffs and allotting the land covered under Ext.A in favour of defendant No. 3 and directing issuance of a commission to effect partition by metes and bounds giving due respect to the possession of the parties in respect of the suit land as far as practicable. The preliminary decree was upheld in Title Appeal No. 55 of 1971 and Second Appeal No. 59 of 1973. In the final decree proceeding, a commission was issued for effecting the partition in accordance with the directions contained in the preliminary decree. The Commissioner after due enquiry submitted his report (Ext. I) map (Ext. II) and allotment sheets (Ext. III). Defendants 2 and 3 filed objection to the report, map and allotment sheets, mainly, on the ground that the commissioner did not give due respect to the possession of parties in respect of specific portions of the suit land, he did not take notice of improvements made by them and the valuation fixed by him was improper. In order to substantiate their objection, the Commissioner was examined and was cross-examined by defendants 2 and 3. Without deciding the objection, the learned lower court by order dt. 8-5-1981 directed the parties to adduce further evidence. The plaintiffs and defendant No. 1 however, opposed the above direction and submitted that no further evidence could be taken by the court at that stage. Defendants 2 and 3 on the other hand, contended that they were entitled to lead further evidence strictly confining the same to the grounds of objection raised by them to the report, map and allotment sheets of the Commissioner. After hearing both parties in the matter, the learned Sub-Judge, in the impugned order held that the party desirous of leading evidence to oppose the report, map and allotment sheets of the Commissioner could do so.

(3.) The only point for consideration is whether in a final decree proceeding in a suit for partition, a party thereto who has raised objection to the report, map and allotment sheets of the Commissioner deputed to effect partition, can, in addition to examining the Commissioner to substantiate his objection, adduce other evidence. While Mr. M. Patra, learned counsel appearing for the plaintiffs contended that in final decree proceedings of this nature, besides the Commissioner who has effected partition, no other witness can be examined in support of the objection, which if done would be a trial within a trial: Mr. S.P. Misra, appearing for the defendants urged that there is no embargo in law prohibiting a party in a suit for partition raising objection to the report, map and allotment sheets of the Commissioner to adduce other evidence to substantiate his objection.