Under challenge is a portion of the order produced as Ext.P2 dated 6.11.2013 whereby the court below remitted the Commission report with the following directions:
“In the result, the commission report and plan are remitted to the Commissioner for the following purposes:-
1. For showing the correct scale in the plan.
2. For showing all the measurements in the plan for determining the exact areas of relevant plots.
3. For showing plaint B schedule property in the plan, in the light of the fact that 'A' schedule mentioned in plaint B schedule means 'A' schedule mentioned in Ext.A2.
4. For showing '7 m' property from point 'A' towards sought in the plan, keeping in mind the western side length of 9 cents mentioned in plaint A schedule.”
2. The suit is of the year 1978. It is one for redemption and partition. A preliminary decree was passed declaring that the plaintiffs have 4/13 shares, the first defendant has 6/13 shares and defendants 2 and 3 jointly have 3/13 shares.
3. Shorn off unnecessary details, the issue relates to whether plaint B schedule property which was subsequently mortgaged forms a portion of plaint A schedule property or forms part of A schedule to Ext. A2 document. Several commissioners have made reports during this period. Three commissioners went and identified the property and in one of the Commission reports, it was found that plaint B schedule property does not form part of plaint A schedule property. Accepting that finding, a decree was passed which was confirmed in appeal and second appeal. However, that decree was found to be non-est for the reason that the decree was passed against a dead person and his legal heirs were not on the party array. Therefore the exercise had to be undertaken all over again and it was so done and Exts. C1 and C1(a) were got prepared. Objections were taken by the petitioners against Exts. C1 and C1(a) pointing out that the subject matter of dispute namely plaint B schedule has not been identified by the Commissioner and certain other infirmities were also pointed out.
3. The trial court found that there are certain serious infirmities in the commissioner's report and it needs to be remitted to the Commissioner for further report.
4. The grievance of the petitioners is that while remitting the Commission report, the court below has entered a finding that plaint B schedule property forms part of A schedule to Ext.A2 which was not proper without locating the property as per Exts. A1 and A2 documents. The definite contention of the contesting petitioners is that plaint B schedule forms part of plaint A schedule property and not a part of A schedule to Ext.A2.
5. The contention of the petitioners is that unless the properties are identified with respect to Exts. A1 and A2, it could not be decided whether plaint B schedule forms part of plaint A schedule to the plaint which is covered by Ext.A1 document.
6. The definite case of the petitioners is that Ext.A1 covers an extent of 4.5 cents out of which one and odd cents is mortgaged as per Ext.A2 document. On the other hand, the contesting respondents pointed out that 1.5 cents mortgaged as per Ext.A2 does not form part of Ext.A1 property, but forms part of A schedule to Ext.A2. The core issue therefore is regarding the identity of plaint A schedule and B schedule and whether plaint B schedule forms part of Ext.A1 property or whether it forms part of plaint A schedule to Ext.A2.
7. Without identifying and locating plaint B schedule with reference to Exts.A1 and A2 documents, it could not have been said that plaint B schedule forms part of A schedule to Ext.A2.
8. In this regard, one may refer to the evidence of the Commissioner who was examined as P.W.1. To a definite question whether plaint B schedule has been identified, the answer given was that he had identified A schedule to Ext.A2. It is also deposed to by him that he had not identified B schedule at all. It was also deposed that the plan and report filed by him did not indicate that the properties have been identified as per title deeds.
9. It may be borne in mind at this juncture that in the preliminary decree there is an observation that plaint B schedule property is the same property shown as B schedule to Ext.A2. For deciding that question, it is necessary that the property covered by Exts.A1 and A2 will have to be identified.
10. The principal dispute is that while the petitioners would say that plaint B schedule forms part of A schedule which has an extent of 4.5 cents covered by Ext.A1 document, the contesting respondents would say that it forms part of 11.14 cents covered by A schedule to Ext.A2. It is interesting to note at this point of time that one of the Commissioners has also observed that 11.14 cents covered by A schedule to Ext.A2 takes in a portion of plaint A schedule property also. Of course that commission report is no longer in force in view of the fact that a decree passed on the basis of that Commission report has been declared null and void. Under these circumstances, it becomes absolutely necessary to ascertain whether plaint B schedule forms part of plaint A schedule covered by Ext.A1 document or whether it is part of 11.14 cents covered by A schedule to Ext.A2 property. Without measuring the properties with respect to the title deeds, the court below was not justified in coming to the conclusion that plaint B schedule forms part of A schedule to Ext.A2. The properties had to be located by the Commissioner.
Therefore, this petition is partly allowed and clause No. 3 which has already been extracted stands set aside and the Commissioner is directed to ascertain whether plaint B schedule property forms part of A schedule property covered by Ext.A1 or whether it is a part of A schedule to Ext.A2 having an extent of 11.14 cents after measuring the property with respect to Exts.A1 and A2 documents and such other relevant documents.
P. BHAVADASAN, JUDGE sb.