RAM BAHADUR Vs. SRI THAKUR SIRI SITARAMJI MAHARAJ

JUDGEMENT

(1.) This appeal must succeed. The suit was originally brought for the partition of a whole mauza. It was dismissed by the trial Court on the ground that there has been a previous partition. There was an appeal to the High Court by the plaintiffs who did not challenge the finding that there has been a previous partition, but urged that at any rate they were entitled to a partition of the shamilat lands that admittedly existed. In allowing the appeal Das, J., with whom Adami, J., concurred, observed that the plaintiff did not press this point in the Court of first instance and therefore would not be entitled as a matter of right to succeed in this Court.

(2.) The decree of the lower Court was modified, and a partition of such of the shamilat lands as were capable of partition was ordered, and the appellants were ordered to pay the costs of the respondents. Several years after the appellate decree of this Court, proceedings were taken in the lower Court, and several out of defendants 4 to 15 applied to the pleader-commissioner stating that they had a 12 annas share in one of the shamilat plots. The pleader-commissioner referred the matter to the lower Court, and the order of the lower Court was that the pleader commissioner should proceed with the work according to his view after hearing the parties and that the Court itself would look into the matter if objections were filed against the commissioner's final report. This meant an entirely unjustifiable delegation of the Court's duties to the commissioner.

(3.) In a partition suit the proper duty of a commissioner is to form and allot takhtas according to the shares of the parties as already admitted or found, and it is entirely outside his duty to decide the shares of the parties, this power being a part of the judicial duty of the Court itself. The commissioner did however as permitted by the lower Court, look into the matter and come to a conclusion in favour of the defendants in question. The plaintiffs, who are the appellants before us, failed to file any objection to the commissioner's report on the date fixed, and the lower Court accepted the report and decreed the suit finally in terms of that report.