FIRST APPEAL No. 69 OF 1988 Against the judgment and final decree dated 18.12.1987 passed by Sri Ram Sagar Singh, the learned Subordinate Judge III, Biharsharif in Title Suit No. 206 of 1973. SRI BABU LAL @ CHAMARI MAHTO------------------------Defendant-Appellant Versus SMT. DUKHI DEVI & ORS.--------------------------------Plaintiffs-Respondents ********* For the Appellant –Mr. R.K.P.Singh, Advocate Mr. Bal Bhushan Choudhary, Advocate Mr. Manish Kishore, Advocate For the Respondent – Mr. Rabindra Prasad Singh Dated : 21st day of September, 2010. P R E S E N T HON'BLE MR. JUSTICE MUNGESHWAR SAHOO ------------ J U D G M E N T Mungeshwar Sahoo, J. (1) The defendants have filed this appeal against the judgment and final decree dated 18.12.1987 passed by Sri Ram Sagar Singh, the learned Subordinate Judge III, Biharsharif in title suit no. 206 of 1973. (2) It appears that the plaintiff-respondent filed the aforesaid title suit for partition of her half share. The suit was decreed by the learned Court below. No appeal was filed against the preliminary decree. Thereafter, final decree proceeding was initiated. Pleader-Commissioner was appointed and Pleader-Commissioner submitted his report. The appellants filed petition to the Pleader-Commissioner. Thereafter, the Court below after hearing the parties, rejected the objection and confirmed the Pleader-Commissioner’s report and final decree was prepared. The Pleader-Commissioner’s report formed part of the final decree. The learned counsel for the appellant submitted that the learned Court below has passed a cryptic and unreasoned order, rejecting the objection of the 2 appellant. It was the duty of the Court below to have dealt with each objection of the appellant by giving reasons for not accepting the same. But the learned Court below said that the objections are vague and rejected the same. The learned counsel further submitted that the appellant is ready to take the Takhta of the plaintiff and the plaintiff be allotted the Takhta of the appellant, if the Pleader-Commissioner’s report is correct. (3) The learned counsel further submitted that the Pleader- Commissioner has wrongly and arbitrarily valued the properties in suit and has not mentioned or disclosed the materials so as to enable the Court to examine the correctness of the value fixed by him. The learned counsel further submitted that the Pleader-Commissioner allotted less kary in Scheduled A to the defendant and the valuation of the defendants land have been fixed excessively. The learned counsel further submitted that during pendency of this appeal, the plaintiff-respondent have sold the lands which are allotted to the appellant by the Pleader-Commissioner without the permission of the Court and therefore, the learned counsel submitted that the sale deed executed by the plaintiff regarding the property which were allotted by the Pleader-Commissioner in favour of the defendant are hit by Section 52 of the Transfer of Property Act. The injunction application was filed by the appellant. While hearing the injunction application, it transpires that the appeal itself is of the year 1988 and the appeal is ready for final hearing without the paper book and therefore, the case was listed under the heading for final hearing. I heard the learned counsel on the injunction application also. (4) From perusal of the Pleader-Commissioner’s report, it appears that the Pleader-Commissioner after giving information to the learned counsel appearing on behalf of the parties and in presence of both the parties inspected and measured all the plots on different dates as mentioned in his report. He also asked both the parties to give valuation and filed Raybandi but only the plaintiff filed the valuation and Raybandi. 3 In spite of sufficient time granted to the defendants, Raybandi was not filed by the defendant. The Pleader-Commissioner also observed that because there was no contrary valuation given by the defendant-appellant and Raybandi, he considered regarding the situation of the land, irrigation facilities, distance of land from the town and facilities of transport, he passed the Takhta giving in details in his report. From the above report, it further appears that the defendants were all along present before the Advocate-Commissioner but they did not raise any objection regarding the valuation and other grounds which are being taken in the objection and before this Court. From perusal of the objection to the Commissioner’s report, it appears that only general allegations regarding valuation and area have been given. It is not their case that no notice was served or that no sufficient time was given by the Advocate-Commissioner to them. It is not the case that in their absence, Pleader-Commissioner proceeded. It is also not their case that the statement of the Pleader-Commissioner to the effect that he measured the properties in their presence and valued the properties within their knowledge is wrong. It is also apparent that no objection was raised before the Advocate-Commissioner and for the first time before the Court below general objections have been raised that the Advocate-Commissioner committed glaring mistakes and he was jealous enough with the appellant and that while preparing chart and allotment of shares, the Advocate–Commissioner committed serious error of law and has not taken into consideration the side inhabitant difficulty and value of the land etc. and etc. In my opinion, these are all general allegations. (5) From perusal of the Commissioner’s report, it appears that after a long and careful local investigation, the Commissioner made a proposal for partition. The said local investigation and measurement were taken place in presence of both the parties. No objection was raised before the Commissioner by the appellant even after filing the objection before the Court below in support of the said objections, the appellant never prayed for examining witnesses. The objection raised by the 4 appellant depends upon the evidences. Without evidences, no finding can be arrived at accepting the case of appellant. In such circumstances, in my opinion, the report of the Commissioner cannot be interfered with lightly. The defendant-appellant had the opportunity to object the same before the Commissioner and also after filing objection, he had the opportunity to establish the contention mentioned in the objection by adducing reliable evidence regarding the valuation and also the difficulty faced by the appellant but nothing was done. In such circumstances, it cannot be said that the report of the Commissioner is unsatisfactory. In my opinion, therefore, in this appeal, the impugned final decree needs no interference. (6) So far the contention of the learned counsel that the appellant is ready to receive the Takhta of the plaintiff and that the plaintiff be allotted the Takhta of appellant is concerned, in my opinion, this cannot be the ground for interference by the Appellate Court. (7) So far the submission that during the pendency of this First Appeal, the plaintiff has sold the lands allotted by the Pleader- Commissioner in favour of the appellant is concerned, it is well settled principles of law that certainly the transfer will be hit under Section 52 of the Transfer of Property Act. Section 52 of Transfer of Property Act reads as follows: “52. Transfer of property pending suit relating thereto. – During the pendency in any Court having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such limits by the Central Government, of any suit or proceeding which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose. Explanation – For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence 5 from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force.” (8) The explanation to Section 52 indicates that the pendency of a suit would encompass the stage after the final decree till complete satisfaction and discharge of such decree or order. The legislature had thought it fit to extend the scope and ambit of the terminology “Suit” even for covering the execution proceedings with decree passed in such suits. In the present case, admittedly still no execution case has been filed. In such view of the matter, Section 52 of the Transfer of Property Act is clearly applicable. Moreover, when in the final decree the Pleader- Commissioner has allotted the property to the parties, the parties have right to recover the possession of the property allotted in their share through process of law. In view of the above facts and the settled principles of law, it goes without saying that if any sale deed is executed by any party during the pendency of this appeal, it will be hit by Section 52 of the Transfer of Property Act. (9) In view of my above discussion, I find that the final decree passed by the Court below is proper, legal and needs no interference. (10) In the result, this First Appeal is dismissed. In the facts and circumstances, the parties shall bear their own costs. Patna High Court, Patna Dated 21st September, 2010 N.A.F.R./ Saurabh (Mungeshwar Sahoo, J.)