Lack Of Opportunity To Cross-Examine Partition Commissioner Does Not Vitiate Final Decree; Report Is Part Of Record: Calcutta High Court

"As opposed to an ordinary witness, whose deposition is the crux of the evidence, in case of a Partition Commissioner, it is the report and objections thereto which form a part of the record and the right of cross-examination, if any, is report-centric and not Commissioner-centric." Calcutta High Court has ruled that the denial of an opportunity to cross-examine a Partition Commissioner does not necessarily vitiate a final decree of partition.

A bench comprising Justice Sabyasachi Bhattacharyya and Justice Supratim Bhattacharya, in a judgment dated July 2, 2026, observed that unlike ordinary witnesses, a Partition Commissioner’s report automatically forms part of the judicial record under the Code of Civil Procedure (CPC). The Court emphasized that while cross-examination is a "weapon" for truth, the statutory requirement under Order XXVI is primarily centered on hearing objections to the report.

The litigation originated from a partition suit filed in 2005 concerning a four-storied building. Following a preliminary decree in 2008 and subsequent appellate challenges, Joint Partition Commissioners were appointed to suggest a scheme for division by metes and bounds. The appellant, the first defendant, challenged the final decree primarily on the ground that the Trial Court had recalled its order allowing cross-examination of the Commissioners, which he argued rendered the final decree invalid.

The primary question before the court was whether the Trial Judge was justified in refusing the defendants an opportunity to cross-examine the Partition Commissioners after initially permitting it. The Court was also called upon to determine whether such a denial of opportunity vitiates the final decree of partition as a whole.

Trial Court’s Procedural History Examined

The High Court noted that the Trial Court had initially observed that there is no better weapon than cross-examination to discover the truth. However, the Trial Judge later recalled this order following a directive from a co-ordinate bench that discharged one of the Commissioners. The High Court found that while the Trial Judge’s reason for the recall was technically flawed—as the other Joint Commissioner remained available—the impact of this procedural decision had to be evaluated against the specific legal framework governing partition commissions.

"The learned Trial Judge was not justified in precluding the defendant nos. 1 and 2 from cross-examining the Partition Commissioners merely on the basis of the order dated September 29, 2023."

Distinction Between Ordinary Witnesses and Commissioners

The bench drew a stark distinction between the evidentiary value of an ordinary witness and a court-appointed Commissioner. It explained that in the case of an ordinary witness, the deposition itself is the evidence, making cross-examination vital to test veracity. However, in partition suits, the "essence" is the report authored by the Commissioner. Under Order XXVI Rule 10 of the CPC, the report becomes a part of the record the moment it is submitted, and its validity does not depend solely on the oral examination of its author.

Court Explains Report-Centric Nature of Commissions

Analyzing Order XXVI Rules 13 and 14, the Court noted that the law requires the court to give a hearing to the parties on their objections. It held that this right of hearing "may or may not include the right to cross-examine." The bench clarified that since the integrity or credentials of the Commissioners were not challenged in this case, the lack of oral examination did not strip the report of its evidentiary character.

"The only requirement under Rule 14(2) of Order XXVI of the Code was for the court to give a hearing to the aggrieved parties on their objections to the report, which has been extensively complied with in the present case."

Reliance on Supreme Court Precedents

The Court placed heavy reliance on the Supreme Court’s decision in Misrilal Ramratan v. A.S. Shaik Fathimal, which established that a Commissioner’s report is part of the record and cannot be overlooked simply due to the non-examination of the Commissioner as a witness. The bench noted that the ratio in that case was a general proposition of law and was not dependent on whether objections had been filed against the report.

Principle of Estoppel Applied Against Appellants

A significant factor in the Court's dismissal of the appeal was the prior conduct of the defendants. They had previously challenged the Trial Court's acceptance of the report through a revisional application (CO 1443 of 2024). However, that application was dismissed for default and never restored. The High Court held that the defendants could not now use the final appeal to re-agitate the same interlocutory grievances, as they were barred by the principle of estoppel and the rules against double remedies.

"A double remedy cannot be provided to the self-same litigant against the same order, having chosen to permit a prior challenge thereto to be dismissed for default and thereafter renewing such challenge afresh in the present appeal."

Equity and Practicality in Allotment of Shares

On the merits of the partition, the Court addressed the grievance that existing possession was disturbed. Citing Hemarun Sanyal v. Hirak Sanyal, the bench held that while Commissioners try to adhere to existing possession as a matter of custom, it is not an "absolute proposition set in stone." The Court found that the defendants’ demand to keep the first and second floors would have resulted in an inequitable distribution of the total area and a fragmented, "absurd" allocation for the plaintiff.

"As long as clearly demarcated and roughly equal areas of property are allotted to each of the parties, none of the parties can insist upon the original possession being retained."

The Court concluded that the final decree passed by the Trial Judge was "perfectly rational and just." It noted that the valuation of owelty money—compensation for deficit areas—was based on professional assessments and complied with the preliminary decree. Finding no error of law or fact, the High Court dismissed the appeal and affirmed the final decree of partition.

Date of Decision: 02 July 2026