IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. R.S.A. No. 435 of 2009. Decided on: 15.3.2010. __________________________________________________ Shri Kailash Chand … Appellant. Versus Shri Surinder Mohan and another. … Respondents. ___________________________________________________________ Coram: Hon’ble Mr. Justice V.K. Sharma, Judge. Whether approved for reporting?1 For the appellant : Mr. Anand Sharma, Advocate. For Respondents No.1 & 2 : Mr. Romesh Verma, Advocate. ___________________________________________________________ V.K. Sharma, Judge (Oral). Shorn of details, the facts leading to the filing of the present regular second appeal can be noticed herein below. A suit for partition being Civil Suit No. 138- 2001/95 was filed by the respondents herein as plaintiffs in the court of first instance at Chamba. The subject- matter of the suit was the land and structures comprised in Khasra No. 1280, 1281, 1282, 1283, 1284, 3906 and 3907, plots 7 measuring 146 square yards and 4 square feet, situate at Mohalla Charpat, Chamba Shehar, Tehsil & District Chamba. The above suit for grant of preliminary decree for partition was decreed by the learned trial Court way 1 Whether reporters of the local papers may be allowed to see the judgment? 2 back on 2.1.2002. The appellant herein being aggrieved took the matter in appeal before the Court of learned District Judge, Chamba, but unsuccessfully. However, vide judgment in Civil Appeal No. 10/2002, dated 11.9.2002, the learned District Judge made the following binding observations in paragraph 33 of the judgment: “In view of my findings on point No.1 above, the appeal is partly allowed and partly dismissed. The findings of the learned trial court on issue Nos. 1, 3, 4, 5, 6, 6A, 6B, 6C, 6D, 6E, 6F and 6G are affirmed and findings of the learned trial Court on issue No.2 and relief clause 7 are modified to the extent that plaintiffs/ respondents shall pay the court fee as per market value of the super structures situated over the suit land qua which the partition is sought by the plaintiffs/respondents. Before making the preliminary decree final, the learned trial Court shall appoint expert local commissioner who will assess the market value of the super structures situated over the suit land under partition and thereafter the respondents/plaintiffs shall file the court fee as per market value of the said super structures situated over the suit land qua partition. The respondents/plaintiffs shall also file site plan of the super structures qua which the partition sought before the learned trial Court at the time of filing application for making preliminary decree final. The fee of the Local Commissioner shall be paid by the plaintiffs/respondents. The judgment and decree of the learned trial Court are modified to this extent only. In view of the peculiar circumstances of the case, the parties are left to bear their cost. Decree sheet be drawn accordingly. The file of the learned trial court along with copy of this judgment and decree sheet be sent back forthwith and the file of this Court be consigned to the record room after due completion.” 3 Against the judgment dated 11.9.2002 of the learned District Judge, Chamba, the defendant preferred an appeal to this Court being RSA No. 493 of 2002, which was ultimately dismissed vide judgment dated 28.5.2008. However, the plaintiffs neither filed any appeal nor any cross-objections to challenge the above mandate handed out by the learned District Judge with regard to assessment of the market value of the subject-matter forming part of the partition suit and affixation/payment of appropriate court fee in accordance with such value, meaning thereby that the findings to this effect have since become final and are binding on all concerned including the plaintiff. Now, by way of an application under Order 20, Rule 18 of the Code of Civil Procedure (in short the Code), the plaintiff applied to the learned trial Court for passing of a final decree for partition based on the aforesaid preliminary decree for partition. However, the defendant objected to passing of such final decree and preferred objections thereto which were duly considered by the learned trial Court, but the same did not find favour with it. Being aggrieved, the defendant again took the matter in appeal before the First Appellate Court, that is, 4 Additional District Judge (Fast Track Court), Chamba, but again unsuccessfully. It is how the matter once again is before this Court. It being a regular second appeal, the matter is required to be examined at this very stage from the view point of Section 100 of the Code. More so, when the facts, as noticed above, would go to show that this is the second round of litigation between the parties up to the level of the High Court. The challenge on behalf of the defendant is laid on the basis of the following substantial questions of law as framed at page 8 of the Paper Book: 1. Whether the judgments passed by the learned Courts below are not vitiated on the ground that these have been failed to exercise the jurisdiction vested with them? 2. Whether the judgment passed by the learned Courts below are not based on misreading of facts and law by ignoring the documentary evidence produced by the appellant with respect to the valuation of the property? 3. Whether the judgments and decrees passed by the learned Courts below will not become infructuous in view of the pendency of similar kind of litigation by another co-sharer and may be a conflicting judgment which will render the present judgment infructuous? 5 A bare perusal of the aforesaid questions would go to show that the same do not go to make out any question of law, what to say of a substantial question of law. However, two grounds of challenge directed by the learned counsel for the defendant, which require consideration and findings by this Court, shall be dealt with hereinafter one by one. Firstly, it is strenuously argued that the learned Courts below have failed to put into effect in letter and spirit the above mandatory direction issued by the learned District Judge in the earlier proceedings with regard to assessment of the market value of the property required to be partitioned and affixation/payment of court fee in accordance with the same. While dwelling on this argument, the learned counsel for the defendant submits that though the Local Commissioner was appointed by the learned trial Court to undertake this exercise, yet valuation made by him in connivance with the plaintiffs is much below the market value of such property as prevailing in the area. This aspect of the matter has been duly considered by both the Courts below and the contention raised by the defendant has been found to be not tenable. 6 Above all, the fact remains that the Local Commissioner appointed by the learned trial Court is a Revenue Officer of the rank of Tehsildar. It being so, it is for the learned executing Court to see whether the assessment made and report submitted by him is in accordance with law or not and it is not the function of this Court to go into all such questions. Valuation of the property in question, according to the learned counsel is to the extent of Rs. 19,28,134/- per square meter. However, the Local Commissioner has assessed the market value of the entire property only in the sum of Rs. 1,34,000/-. The difference on the face of it is astronomical and if there is even an iota of substance in this submission, it would be open to the defendant to initiate appropriate action against the Local Commissioner, that is, the Tehsildar, whosoever he may be, who is a functionary of the State Government and thus would be liable for any alleged connivance with the plaintiff and the resultant loss allegedly caused to the State exchequer by way of under valuation of the suit property and thereby evasion of court fee. In such eventuality, the concerned authorities shall be duty bound to conduct a proper enquiry and proceed further in the matter in accordance with law. However, it goes without saying that such an 7 inquiry would be independent of the present proceedings and would not go to affect the same. The second contention raised is that one Smt. Sneh Lata, who was also one of the co-owners in the property in question and had later on relinquished her share therein in favour of the plaintiffs, has filed a separate suit whereby she has challenged the relinquishment allegedly made by her in favour of the plaintiffs and that suit is pending in the Court of learned Civil Judge (Senior Division), Chamba. However, when confronted, neither the learned counsel for the defendant nor the learned counsel for the other side could bring to the notice of this Court that there is any restraint order passed either by the learned trial Court in that suit or any superior Court, whereby any embargo has been put on the proceedings out of which the present appeal has arisen, that is, the partition proceedings qua the property in question. It being so, mere filing of such suit would not stall the present proceedings, which as already observed, are for the second time before this Court. In view of the above, the appeal being without merit is dismissed with costs throughout. 8 In view of the disposal of the main appeal, pending applications, if any, shall also stand disposed of as infructuous. (V.K. Sharma) Judge. March 15, 2010. (cr)