APPEAL FROM ORIGINAL DECREE NO.28 OF 1986 Against the Judgment and final decree dated 6.7.1985 passed by Sri Jagmohan Bir, 5th Additional Sobordinate Judge,Patna, in Title Suit No.119 of 1962 / 2 of 1965. Pabitri Devi W/o Late Janak Gope. And others. …………Defendants/Appellants. Versus Rash Bihari Gope S/o Sri Ram Sewak Gope & others. ……….Plaintiffs / Respondents. For the appellants: Mr.Indu Shekhar Pd.Sinha, Sr.Advocate Mr. Jyotindra Pratap Singh, Advocate. Mr.Ujjwal Kumar Sinha, Advocate. For the respondents No.2: Mr.Madhu Prasoon, Advocate. Mr.S.N.Mishra,Advocate. No. 4(1) to (v): Mr.Manoj Kumar Sinha,Advocate. No.6 : Mr.Ram Nath Saran, Advocate. No.7: Mr. Shivnandan Rai, Sr.Advocate. P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO Mungeshwar Sahoo,J. This first appeal is directed against the Judgment and final decree dated 6th July,1985 passed by the learned 5th Additional Subordinate Judge, Patna, in Title Suit No.119 of 1962 / 2 of 1965. The plaintiffs’ suit for partition was decreed and according to the preliminary decree final decree was prepared, sealed and signed. The defendants first set have filed this appeal. 2. The learned Senior counsel appearing on behalf of the appellants raised three points and submitted that on these grounds alone the main decree and judgment confirming the pleader 2 commissioner’s report is liable to be set aside. 3. The first point raised by the learned Senior counsel is that the Advocate Commissioner’s report on which the judgment has been based is without jurisdiction as the Court after appointing Advocate Commissioner did not issue notices to the defendants/ appellants which is mandatory according to the requirement under Order 26 rule 18 of the C.P.C. In support of his contention the learned counsel relied upon a decision reported in A.I.R. 1962 Patna 211( Smt. Mandera Mukherjee vrs. Sachindra Mukherjee and ors.). The learned counsel with the help of this decision submitted that even if Advocate Commissioner issued notices, the defect under Order 26 rule 18 cannot be cured. 4. The next point raised by the learned Senior counsel is that the Advocate Commissioner’s report suffers from error of records. To show error of records the learned counsel placed order sheets of the Pleader Commissioner dated 4.4.1984 and 16.4.1986 and submitted that in these order sheets the Advocate Commissioner mentioned that the defendants appeared and filed time petition whereas no time petition is on record nor there is anything to show that the defendants appeared. Likewise the learned counsel placed order sheet dated 23.3.1984 of the Advocate Commissioner and submitted that the Advocate Commissioner has mentioned in the order dated 23.3.1984 for which notices were issued to the defendants and further it is mentioned in order dated 4.4.1984 that two requisite cards mentioning refusal by the 3 defendants had been received but these statements of the Advocate Commissioner are not supported by the record. 5. The learned counsel next raised question that the Advocate Commissioner held local inspection in absence of the defendants. On these grounds the learned counsel submitted that the appeal should be allowed. 6. On the other hand, learned counsel appearing for the respondents submitted that the partition suit is of the year 1962 and the final decree was passed in 1986 because of the lingering tactics adopted by the appellants. The learned counsel further submitted that the decision cited by the appellants, i.e., A.I.R. 1962 Patna 211 is not applicable in the present case. According to the learned counsel the appellants after appearance before the Advocate Commissioner did not object the jurisdiction of the Advocate Commissioner and, therefore, they participated in the final decree proceeding and waited for the result and now, therefore, they are estopped from challenging either the jurisdiction of the Advocate Commissioner or the correctness of the report. The learned counsel further submitted that whatever statement is recorded by the Advocate Commissioner in his order sheets in the proceeding is quasi judicial proceeding and, therefore, the appellants cannot be allowed to challenge the same. In support of his contention he relied upon a decision reported in the 2010 (1) PLJR 695 ( Pawan Kumar & another vrs. The State of Bihar and others). 7. In view of the above contentions of the parties 4 now let us examine the points one after the other. From perusal of the decision reported in A.I.R. 1962 Patna 211 (supra) it appears that in that case very appointment of the Advocate Commissioner without notice to the defendants by the court was under challenge. On 9.9.1956 a petition was filed on behalf of the plaintiffs for appointment of a pleader commissioner to make an inventory with valuation of the properties sought to be partitioned and an ex parte order was made on the same day for preparation of such an inventory although no notice had been issued to any of the defendants. The Commissioner held local inspection in absence of the defendants after serving notice on the defendant no.1. The defendants challenged the said order appointing commissioner in civil revision before this Court. Considering the above aspect of the matter in that case this Court held that the order of the learned Subordinate Judge appointing a Pleader Commissioner without notice to the defendants was without jurisdiction because Rule 18 of Order 26 requires that court shall direct the parties to appear before the Commissioner. According to the submission of the appellants in the present case no notice was served by the Court to the defendants. From perusal of the L.C.R. it appears that on 3.6.1982 application for appointment of advocate commission was filed by the plaintiffs. An application on behalf of the defendants was filed praying for time. From perusal of the order sheet of the court below prior to that order it appears that the defendants were all along present in the court below. It further appears from perusal of the order dated 5 3.12.1982 Advocate Commissioner, Sri Vidya Nand Singh, was appointed. On that day also the defendants were present. Therefore, it cannot be said that no notice was served on the defendants- appellants. The learned counsel for the appellants submitted that the court below should have directed the appellants to appear before the Advocate Commissioner but no such direction is there. In my opinion, it is not necessary that while writing order the court below must writ that the parties are directed to appear before the Commissioner. The court below has appointed the Commissioner in presence of the defendants and, thereafter, Advocate Commissioner also issued notice. In such circumstance the decisions cited by the appellants, i.e., A.I.R. 1962 Patna 211 is not helpful to the appellants. In the present case, at our hand, it is not the case without notice to the defendants Advocate Commissioner had been appointed. 8. The next point raised by the appellants is regarding the error of record in the dates mentioned above. It is admitted fact that in this appeal the Advocate Commissioner is not a party. In a decision reported in 2010 (1) PLJR 695 this Court had held that the order sheets are not in judicial or quasi judicial proceeding have been considered to be sacrosanct. If a order sheet is questioned the author of the order is not in a position to defend himself. In a decision reported in A.I.R. 1982 SC 1249 it has been held by the apex Court that order recorded in order sheet will prevail. In that case it appears that the Advocate filed affidavit stating that the order 6 sheet is wrong. But it was not accepted. In this case the order sheet records that the defendants appeared before the Advocate Commissioner and prayed for time. Therefore, the submission of the appellants that it is error of record is not acceptable. 9. The learned counsel raised third point that the local inspection was done in absence of the defendants. So far this point is concerned, Order 26 Rule 18 (2) itself provides that whether all or any of the parties do not appear, the Commissioner may proceed in their absence. From the order sheet of the Advocate Commissioner it is clear that the defendants appeared and filed only time petition. Now, therefore, they are estopped to say that in their absence local inspection was made by the Advocate Commissioner. From the order sheet of the Advocate Commissioner which has been filed by the appellants it is clear that they had the knowledge that the Advocate Commissioner was proceeding ahead but they did not participate rather they appeared and filed only time petition. 10. In view of the above facts and circumstances of this case, on these grounds raised by the appellants the impugned Judgment and final decree cannot be interfered with. So far the merit regarding allotment of property is concerned no case is made out that principles of partition has not been followed. It may be mentioned here that , in fact, on these points the appellants did not address the court. From perusal of the order confirming the Pleader Commissioner’s report it appears that the learned court below has 7 discussed all the objections raised by the appellants and, after rejecting the objections, has confirmed the Advocate Commissioner’s report. 11. In view of the above consideration I find that the impugned order / judgment and final decree cannot be interfered with in this first appeal. 12. In the result, I find no merit in this appeal and is, accordingly, dismissed. In the facts and circumstances of the case, there will be no order as to cost. (Mungeshwar Sahoo) The Patna High Court, Patna. The 8th April,2010. AnilKr.Sinha,Secretary / A.F.R.