' MUHAMMAD MUZAMMAL KHAN, J.---This appeal is directed against a final decree passed by the learned Civil Judge, Daska, District Sialkot, dated 26-2-1996 passed in a partition suit filed by the appellant and respondent No,6, real sisters of the other respondents.
2. This suit related to a joint property inherited by the parties, wherein a preliminary decree determining shares of the parties was passed by the learned trial Court on 24-9-1995, which was not challenged in appeal by any of them. Under the preliminary decree, the learned trial Court appointed a local commission for determination of mode of partition and under these orders the local commission visited the spot on 20-11-1995. The learned local commission in his report dated 7-12-1995 reported that the property is partable but this report was subjected to objections by respondents Nos.1 to 5 and presumably this report was set aside, as the order dated 15-1-1996 does not contain any verdict in this behalf whereby the local commission was directed by the learned trial Court to assess market value of the property in question, on an unbased assumption that the property is unpartable. Ch. Muhammad Azam, Advocate, Daska, who was appointed a local commission, on the basis of his presumptive market value of the property assessed it at Rs,15,00,000 vide his report dated 14-2-1996. In this report learned local commission, without recording any evidence or considering other sales in the vicinity and without having any expert opinion of some civil engineer or expert of constructions, said that according to his assessment market value with constructions of the property is Rs,15,00,000. This report was submitted in Court on 15-2-1996, the date fixed in the case. Order sheet of the learned trial Court reveals that on receipt of report of the local commission dated 14-2-1996, it fixed next date as 26-2-1996 for orders and on this date final decree, impugned before us. Was passed.
3. We have heard the learned counsel for the parties. Learned counsel appearing on behalf of the appellant submits that respondents Nos.1 to 5 had objected to the earlier report, which reported that the property is partable, that the share of plaintiffs is excess only to the extent of 0.72 feet from the front and had not objected that the property is not partable. It was also added that the learned trial Court, besides the first report of the local commission dated 7-12-1995, had no other material to come to the conclusion that the property is not partable and thus direction to the local commission for assessm ent of market value of the disputed property was not justified. He further submits that report of the learned local commission dated 14-2-1996 has no basis whatsoever and the local commission being not a building expert should have called the parties to adduce evidence for determination of the same or he himself should have collected material for this purpose, but he, of his own, assessed the market value which, on the face of the report, is presumptive. Learned counsel for the appellant further submits that the learned trial Court on receipt of report from the local commission adjourned the case for orders without providing the parties an opportunity of looking into the report and objecting to it. He claims that non-inviting of objections to the report, renders decision impugned in the appeal a nullity, as the same has mainly been based on this report which was neither confirmed nor was scrutinized by the learned Civil Judge before placing reliance upon it.
4. Contrary to the arguments of the learned counsel for the appellant, learned counsel for the respondents has attempted to substantiate the impugned judgment by saying that since the property is not partable, the market value assessed by the local commission is the only value of the property in dispute. It may be so, but we are unable to see an eye to eye with him as the earlier local commission's report says that the property in question is partable. There was nothing on the file to assume by the learned trial Court that how this has ,become unpartable just after a month.
There was no occasion for a direction to the local commission to assess the market value of the disputed property especially when the same is partable and the first report has not been set aside in any manner whatsoever. We are also unable to understand on what basis the local commission has assessed the market value of the property in question at Rs,15,00,000 as he did not collect any data whatsoever from the vicinity or from the official, records like Sub-Registrar or Revenue office concerned. For determining value of, the constructions, he should have. Considered besides other things, the construction rates schedule of Government Hui!Dings Departments of P.W.D. Similarly, we think that submission of the learned counsel for the appellant is quite just that the appellant was not given any opportunity of looking into the report of the local commission dated 14-2-1996 or of filing any kind of objections to it, as order sheet reveals that this report was filed in Court on 15-2- 1996 and the next date fixed by the Court was 26-2-1996 for orders and on this date final decree was passed. The procedure adopted is absolutely contrary to the provisions of Order XXVI, rule 10 of the Civil, Procedure Code, 1908, whereunder a report had to be confirmed or set aside after affording the parties opportunity of objecting it and allowing them to substantiate their assertions by examining the commissioner or other evidence. In this behalf our this view is supported by following judgments:-
(i) Harcharan Das v. Firm, Dhanpat Mal-Dewan Chand AIR 1917 Lahore 57. In this case while examining the provisions of Order XXVI, rules 8, 10 and 12 of the Civil Procedure Code, Court came to the conclusion that parties have a right to object the commissioner's report and the party objecting can examine him in. Support of his assertion.
' Nabi Bakhsh v. Liaqat Ali 1988 CLC 1114. In this case a report was filed regarding improvements made in the property, whereto none of the parties objected and the view taken by the Court was that since nobody objected to it, the report of the local commissioner would be deemed to have been accepted by the parties.
(iii) Messrs Kausar & Co. v. Messrs Universal Insurance Co. (Pvt.) Ltd. 1991 M LD 1774. In this case it was also held that the disputant of the report has to lodge due objections against the report, whereupon the report would come up for the judicial scrutiny.
5. We feel that no opportunity of filing objections to the report was given to the parties, which was a necessary requirement as without these objections, any of the parties, attacking the report, could not examine the local commission or produce other evidence. Besides the provisions of Order XXVI, rule 10, C.P.C., we are supported by the judgment in the case of P. Moosa Kutty AIR 1957 Madras 717, wherein while examining the provisions of Order XXVI, rule 10, C.P.C. It was held that it is open to any of the parties to show that the report of the commissioner is incorrect and that it is not entitled to credence, by filing objections to the report. The said report, besides its defects, as referred to above, is not a report worth reliance and on the basis of it, final decree could not have been passed.
6. From the above discussion, we are of the view that the matter must go back to the trial Court for re-determination as to whether the property in question is partable and if at all it is not partable then what is its market value. We consider it necessary, to meet the interest of justice, the trial Court should appoint some building expert for this purpose so that justice should be done between the parties. This appeal is accordingly accepted, the judgment/final decree dated 26-2-1996 passed by the learned Civil Judge, Daska, District Sialkot, impugned before us, is set aside and the case is remanded back to the learned trial Court for re-determination, as observed above. In view of the nature of the litigation, we would like to direct the trial Court to conclude these proceedings expeditiously, preferably within a period of four months. No order as to costs.