S. K. Phaujdar, J. - (1.) THE matter was once disposed of by a judgment dated 27.3.1997. THE appeal was then dismissed on a preliminary objection on maintainability as the Court was of the view that the final decree had not been drawn at all. Immediately after the recording of that order, the learned counsel for the appellant traced out the final decree In the records. After hearing both the parties, the order dated 27.3.1997 was reviewed and recalled and the matter was heard on merits.
(2.) THE second appeal In question arose from Civil Appeal No. 273 of 1984 decided by the Civil Judge, Azamgarh. on 6.1.89. This civil appeal was again directed against the decision dated 28.1.1984 In Original Suit No. 409 of 1966 recorded by the Munsif, Mohammedabad, Azamgarh. There had been a suit for partition between the parties and a preliminary decree was recorded and there had been an appeal as well. In terms of the decree of the trial court and the appellate court, the decree-holder and the respondent No. 4 were to get half share each in the suit property. The Munsif was approached for drawing up a final decree to effect the partition according to the decreed shares by metes and bounds. An advocate-Commissioner was deputed and his report was submitted before the Munsif. This report of the advocate-Commissioner was objected to by the defendant-judgment-debtor and after hearing the parties, the court rejected the objection of the defendant and directed that final decree be drawn up In terms of the report and the map prepared by the advocate-Commissioner. As aforesaid, this order was challenged in appeal before the Civil Judge, Azamgarh. The appellate court considered the objection raised by the appellants before it. One of the objections was that certain land in possession of the decree-holder which was really a joint property of the parties was not included In the partition. The advocate-Commissioner had included other lands also in his report for partition which were beyond the suit and in making the partition the respective possession of the parties was not at all honoured. It was further objected that the advocate-Commissioner had not made any arrangement for any passage to the respective shares of the parties. The objections were taken up individually and were rejected. The appellate court observed that the order dated 28.1.1984 directing preparation of final decree was legal and could not be Interfered with. During hearing of the first appeal, the Commissioner's report, dakhalnama in terms of the final decree were placed before the court and the court had found from a perusal of these papers that the decree-holder got possession in terms of these papers.
(3.) THIS second appeal was admitted on 4.5.1989 on question No. 2, as indicated In page 6 of the memorandum of appeal. The question was framed as follows : "Is the judgment of the lower appellate court vitiated in law on account of its having illegally permitted additional evidence to be accepted at the appellate stage and to have placed reliance on the same though it was wholly irrelevant as being dakhalnama of another case treating as dakhalnama of the instant case?" A preliminary objection was taken by Sri Faujdar Rai on the competence of the first appeal itself. It was stated that on the date of first appeal, no final decree was prepared and the order appealed against was only one disposing of an objection against the report of the advocate-Commissioner and that order was not open to appeal. It was stated that there being an incompetent first appeal, a second appeal would not lie at all. There is no factual dispute that after a preliminary decree an advocate-Commissioner was deputed to make the partition in terms of the decree. The relevant law is contained in Order XXVI of the C. P. C. Rule 13 under this Order provides that where a preliminary decree for partition has been passed, the court may, in any case, not provided by Section 54, issue a Commission to such person as it thinks fit to make the partition or separation according to the rights as declared In such decree. Rule 14 speaks about the procedure to be adopted by such Commissioner appointed for making the partition. The Commissioner is required to divide the property into as many shares as may be directed under the order under which the Commission was issued. He has to do it after such enquiry as may be necessary. He is to partition such share to the parties and, if authorised thereto by the order issuing the Commission, the Commissioner may award sums to be paid for the purpose of equalising the value of the shares. The Commissioner is also required to prepare a signed report apportioning the shares of each party and distinguishing each share by metes and bounds. Such report is to be transmitted to the court which had issued the Commission. After the receipt of the report, the court is to hear any objection which the parties may make to the report and the court would thereafter confirm, vary or set aside the report. Rule 14 (3) provides that where the court confirms the report, it shall pass a decree In accordance with the report so confirmed. In case the court sets aside the report, it would issue a new Commission to make such order as it shall think fit.;