- (1.) THIS appeal has been filed by the plaintiff appellants against the judgment dated 16.1.1993 and the final decree signed on 20.9.1995 passed by the learned Sub Judge I, Lohardaga in connection with Partition Suit No. 18 of 1989.
(2.) IN course of arguments, learned counsel has submitted that the appellants are satisfied with the preliminary decree and shares allotted to them from the Schedule B property. It is pointed out that the plaintiff/ appellants shall get 2/7th share from half of the suit property mentioned in Schedule B to the plaint according to the judgment and preliminary decree. The learned counsel has confined his arguments to the extent of the report submitted by the pleader commissioner and submitted that it is an incorrect report and therefore the final decree prepared on the basis of such report is also incorrect and hence liable to be set aside.
(3.) IN support of his contention, learned counsel has drawn my attention to issue no. 7 which has been discussed in para 14 of the judgment and submitted that the land appertaining to plot no 85, area 1.05 acres in mouza Nadia had already been sold by legal heirs of Sattar and the sale deed has been marked as Ext. 3. Therefore, it is an admitted position that the land under plot no. 85, area 1.05 acres was not in possession of the co -sharers; rather, possession was handed over to the purchaser. Learned pleader commissioner did not take note of this fact and recommended said plot also for carving out shares of the plaintiffs and, therefore, the report of the pleader commissioner is incorrect and erroneous and thus the final decree prepared on the basis of the said report is also incorrect. Learned counsel has further pointed out that area measuring 1 acres 571 kari, under plot no 187 as shown in column (b) at page 6 of the pleader commissioner's report is also incorrect. The pleader commissioner has reduced the area from 1 acres 571 kari to 1.03 acres disclosing Revisional Survey Plot no 67 under khata no. 69 of village Nadia. As a matter of fact, the revisional survey plot no. 67 is unknown to the case record and it is not indicated by any of the parties in course of trial. It is not disclosed as to how he had connected revisional survey plot no. 67 with M.S. plot no 187 and this imagination of the pleader commissioner should not have been given effect to. In view of the above, it is evident that the report of the pleader commissioner is incorrect and liable to rejected and the final decree prepared on the basis of the said report is liable to be set aside. Last but not the least, it was submitted that after calculation, the plaintiff could learn that he would get 42.3 decimals of land from schedule "B" property, but he has been allotted only 36 decimals including 30 decimals falling within plot no. 85 which has already been sold as per Ext.3. Since there appears apparent mistake in the report of the pleader commissioner, it should not have been relied upon and the final decree so prepared is unsustainable and is fit to be set aside.;