1. Plaintiffs in T.S 68/1973 of the 5th Court of the Assistant District Judge, Alipur have called in question the legality, validity and the propriety of the order accepting the Advocate Commissioner's report in an application for pre-emption. The predecessors-in-interest of these petitioners filed a suit for partition and prayed for permanent injunction in T.S 68/73 against the defendants/opposite parties. After the death of the original plaintiff, these petitioners were substituted as his legal representatives who were allowed to prosecute the suit. Sk. Abdul Haque, the defendant No. 1-opposite party contested the said suit for partition by filing his written statement. The defendant No. 1 is said to have acquired an interest in the disputed property which is a family dwelling house under several purchase deeds. He is a stranger to the family. The partition suit was preliminarily decreed on contest against the defendant No. 1 and ex parte against others. In the said suit, it was held that the plaintiffs-petitioners were entitled to 209/864th share in the suit property. The final decree application is now pending in the Trial Court. Thus, the petitioners have claimed that the defendant-opposite party had purchased moiety under five different Registered Sale Deeds for a sum of Rs. 27,000/-. The defendant No. 1 having purchased the residential house from the different co-shares he being an outsider is not legally competent to possess the joint family dwelling house. Therefore, the revision petitioners filed an application under S. 4 of the Partition Act which was registered as Misc. Case No. 30/84 for pre-emption. The opposite party No. 1 filed written objection to the said application. The learned Assistant District Judge, Alipur allowed the Misc. Case No. 30/84 for pre-emption against the defendant No. 1. After the said application having been allowed the learned trial court had appointed an Advocate Commissioner for assessment of the valuation of the interest of defendant No. 1-opposite party in the suit property. The Commissioner submitted his report by assessing the value of the interest of the defendant No. 1 at Rs. 15,26,400/- (Rupees Fifteen laks twenty six thousand four hundred only). The trial Court accepted the Commissioner's report after ever-ruling the objection of the petitioners. Thus, the petitioners challenged the acceptance of the commissioner's report in this revision.

2. Mr. Dasgupta on behalf of the revisionist has strenuously urged that the order of the learned Asstt. District Judge accepting the Commissioner's report which was based on unscientific and illogical reasons is nothing but illegal, arbitrary and irregular exercise of jurisdiction. He, however, maintained that the Commissioner without collecting any materials at this spot had arbitrarily fixed the valuation at such staggeringly inflated figure of amount of Rs. 15,26,400/- in which case it is highly impossible and impracticable for the petitioners to comply with this said order.

3. Mr. Dasgupta took an inexorable plea that while assessing the valuation of a property on an application under S. 4 of the Partition Act the valuation under which the property is said to have been sold assumes greater significance. The learned Commissioner has overlocked these aspects and arbitrarily assessed the valuation at an astronomically high figure. The learned Commissioner having not observed the basic norms and his report was more on impertinent grounds is liable to be rejected.

4. The pre-emption application filed by the petitioners had been allowed vide Order No. 215 dated 17th January, 1987 in Misc. Case No. 30/84. Under the aforementioned order the parties were directed to amicably settle price of interest of opposite party No. 1 in the suit premises within 3 months from that date viz. 17-1-1987 failing which either party at liberty to apply for the appointment of a Commissioner to assess the valuation of the interest of the opposite party No. 1. Since the matter could not be amicably settled between the parties the plaintiffs were obliged to file an application for appointment of a Commissioner for the purpose of assessing the valuation. It transpires from the records that the Commissioner had submitted his report on 26-11-1987. The enquiry was conducted in presence of both parties at the spot. He also examined a sale deed at Rs. 34,000/-. It appears from the Commissioner's report that the revision petitioners failed to produce any documentary evidence relating to the valuation of the suit properties. The Commissioner has mentioned in his report as to how he arrived the valuation at such rate and also the method employed by him. The valuation was assessed by the Commissioner with effect from the date of application i.e 17-1-1987. The valuation of 1 cottah land according to the Commissioner was fixed at Rs. 1 lakh thus, the total valuation was taken to be Rs. 15,26,400/-. The valuation so assessed by the Commissioner was on the basis of a kobala dated 9-8-1985.

5. Mr. Dasgupta, the learned counsel appearing for the petitioners has however, highlighted that the situation of the land sold under the kobala dated 9-8-1985 was at a different place than the suit property. Therefore, the comparison regarding the valuation fixed on the basis of the said kobala has no legal nexus to the suit property. The petitioners have relied upon a decision reported in (1991) 4 SCC 195 in the case of Periyar & Pareekanni Rubbers Ltd. v. State of Kerala. It has been held thus:—

“What is fair and reasonable market value is always a question of fact depending on the nature of the evidence, circumstances and probabilities in each case. The guiding star would be the conduct of a hypothetical willing vendor who would offer the lands and willing purchaser in normal human conduct would be willing to buy as a prudent man in normal market conditions as on the date of the notification under S. 4(1) but not an anxious buyer dealing at arm's length nor facade of sale or fictitious sales brought about in quick succession or otherwise to inflate the market value.”

(Italiced supplied for emphasis).

The case referred to above relates to land acquisition matter. Sometimes immediately after knowing that the lands are going to be acquired some spurious documents are created for the purpose of compensation by inflating figures. In that back-ground, the Apex Court held that the documents under which the property was purchased would be the best evidence for the value of the property, in its absence the sales of the neighbouring lands. The petitioners placed reliance on another decision reported in (1971) 75 Cal WN 195 in the case of Surendra N. Achar v. Ram Ch. Hazra. Mr. Dasgupta, the learned counsel has however, vehemently argued that the partition Commissioner while fixing the valuation of the transferred share should have taken as the standard, the price of the transferred share as disclosed in the document of transfer. The court while fixing the valuation of the defendant No. 1's share, it should not only base its findings on the Commissioner's report but on other contemporaneous documents, such sale deeds and also oral statement if any. The Commissioner without taking the valuation of the deed under which the defendant No. 1 said to have purchased the suit properties into consideration solely depended his report on a deed of the year 1985. Thus, the order accepting such report had occasioned failure of justice. While considering the contention of Mr. Dasgupta, I had an occasion to go through the Division Bench of this court reported in (1955-1956) 60 Cal WN 829 at page 833 (Subal v. Gostha) on the basis of which this Court decided in (1971) 75 Cal WN 195. In the decision cited supra this court has held:.—

“There is another aspect of the question to which also reference may be made. While dealing with the application under S. 4 of the Partition Act the Court is required to value the stranger's share in the dwelling house. The stranger is compelled to transfer that share for the amount to be fixed. How is this valuation to be made?

The position is somewhat analogous to the one when a property cannot be reasonably or conveniently allotted to all the parties and one or more of the share-holders may apply to the Court under S. 3 of the Partition Act for relief to purchase the same at a price which may be ascertained by the Court. When the property is to be sold under S. 3 of the Partition Act at a valuation to be fixed by the Court the method of assessing the value is different from the method adopted for determining the valuation for allotting shares to the different parties. In the case of a sale to an outsider under S. 2 of the Partition Act the valuation is fixed only for the purpose of having a reserve price above which outsiders would be required to bid. In the case of a sale under S. 3 of the Partition Act the co-sharers applicants become entitled to get the property at the valuation fixed by the Court. As was observed in Nitish Chandra Ghose v. Promode Kumar Ghose, (1952) 56 Cal WN 375 at page 379 : (AIR 1953 Cal 18 at pp. 19 and 20) (see also Manick Lal Dutt v. Pulin Behari Pal, AIR 1950 Cal 431) that requires.

“a very careful decision by the Court as the interest of all the co-sharers must be borne in mind in fixing such a price for the purpose of S. 3”.

While fixing a valuation after an application is made under S. 4 of the Partition Act the valuation is to be fixed on the proper market value. Such valuation is to be fair both to the stranger purchaser and also to the co-sharers of the erstwhile undivided joint family. The sale by the stranger to the co-sharer is a forced sale and therefore such valuation is to be fixed with great care and precision.

When a Commissioner for Partition makes allotments to different co-sharers and for that purpose values a particular property he fixes relative values of the different shares as allotted to different parties, it is not really a case of a forced sale by one party to another.

The direction given by the learned Subordinate Judge about an item of property, which was not the subject matter of the application under S. 4 of the Partition Act, cannot stand. The proper order therefore will be to expunge that direction in the judgment of the Court below. The Court is not now to make any observation about the allotment in respect of the C.S Dag No. 1024.

The limited direction to be given now is to ascertain, after hearing the parties on the Commissioner's Report the value only of the plaintiff's share in the dwelling house which is proposed to be purchased by the defendant. A date is thereafter to be fixed within which the defendant petitioner is to deposit the amount as may be ascertained by the Court on the report of the Commissioner. If the amount is so paid a conveyance is to be executed by the plaintiff in favour of the defendant. On the deposit being made by the defendant the Court will issue necessary directions to the Commissioner for effecting partition of the remaining item of joint property. As to how that plot is to be partitioned will be decided at the stage when the Commissioner of Partition submits his final report and the Court proceeds to consider the same. In what manner C.S Dag No. 1024 is to be partitioned at that stage is a matter on which we do not express any opinion”.

6. On a careful reading of the above decision it indicates that the valuation of the property for which the prayer under S. 4 of the Partition Act is made, has to be fixed on the prevalent market value at the time of filing an application under S. 4 of the Partition Act. On reading the impugned order, it is implicit that the learned Court below has meticulously examined the merits of the contention of petitioners and rejected those objections inasmuch as the Commissioner had met those points raised by the revision petitioner. It appears that the Commissioner fixed the valuation after taking the evidence from the parties. The petitioners having participated in the enquiry should not be allowed to turn-round and say that the enquiry was biased and prejudicial.

7. Mr. Mukherjee, the learned counsel appearing for the opposite party No. 1, has seriously challenged about the maintainability of the revisional application. It is highlighted that the Commissioner's report should not be rejected except on clearly defined and sufficient grounds. The court should not act as an expert and overrule the Commissioner's report whose integrity and carefulness are not questioned. In support of his contention Mr. Mukherjee relied on a decision reported in AIR 1979 Cal 50 (Roy and Co. v. Smt. Nani Bala Dey). The Court held:—

“The Commissioner's report should not be rejected except on clearly defined and sufficient grounds. The Court should not act as an expert and overrule the Commissioner's report whose integrity and carefulness are not questioned and who did not blindly accept the assertions of either party.”

Admittedly the petitioners have not challenged either the integrity of the Commissioner or his carefulness. In another decision reported in AIR 1940 PC 3 in the case of Chandan Mull Indra Kumar v. Chinman Lal Girdhar Das Parekh. It was held:—

“Interference with the result of a long and careful local investigation except upon clearly defined and sufficient grounds is to be deprecated. It is not safe for a Court to act as an expert and to overrule the elaborate report of a Commissioner whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report, and who had not blindly adopted the assertions of either party.”

From the ratio of the above decision, it is (sic) that the revisional court would be slow and war while entertaining the objection regarding the acceptance of the Commissioner's report in a revisional application. The Commissioner's report even if accepted by itself does not, however, mean that the parties are precluded from challenging the evidence of the Commissioner or assailing the report by examining any other witnesses to countermand the effect of the report. It has been held in a decision reported in AIR 1966 Orissa 121 in the case of Harihor Misra v. Narhari Setti Sitaramiah (para 4):—

“Rule 10 of O. 26 does not make the report of the Commissioner as concluding the question of valuation. On the contrary, the rule gives clear indication that the report of the Commissioner is only one of the pieces of evidence amongst other evidence to be led by the parties for determination of the issue on valuation of the suit. When the parties file no objection to the Commissioner's report, the court rightly accepts the report. Its acceptance by itself does not, however, mean that parties are precluded from challenging the evidence of the Commissioner and the witnesses examined by him or by giving any other evidence to countermand the effect of the Commissioner's report.”

Thus, from the underlying principle emerging from the above cases, it is manifest that the party objecting to the Commissioner's report can lead best possible evidence at the time of hearing to countermand the report even if the same was accepted earlier. The Court on taking the comprehensive view decide the point at issue and arrive at right conclusion I do not find at this stage any justification to interfere with the findings of the learned trial court order accepting the Commissioner's report.

8. Accordingly, the revisional application being lack of merit is dismissed but in the circumstances without costs.

Application dismissed.