Roshan Lal vs Gopal Dass

Rakesh Kumar Jain, J.—This revision petition is against the order dated 14.7.2014.

Brief facts of the case are that Gopal Dass and Hari Lal had filed a suit for separate possession by metes and bounds of the property/house measuring 182 Square Yards, consisting of 2 1/2 stories situated at Dhab Khatikan, Amritsar and also prayed for permanent injunction restraining the defendants from selling, alienating in any manner whatsoever, letting out the said property or any part there of during the pendency of the suit.

The case of the plaintiffs is that the plaintiffs and defendants are joint owner of the property in dispute to the extent of 1/4th share which was purchased by them by way of sale deed on 02.02.1977 from one Sawaraj Lal Chadha son of Ganesh Dass Chadha. After becoming owners, the plaintiffs were not interested in remaining joint with the defendants therefore, the present suit for partition is filed.

After appearance, defendant No. 1 contested the suit by filing the written statement whereas defendant No. 2 admitted the case set up by the plaintiffs. Thereafter, defendant No. 2 stopped appearing. After completion of pleadings, as many as, seven issues were framed by the trial Court and both the parties were given opportunity to lead their respective evidence. Ultimately, the suit was decreed.

During execution, one Varun Taneja filed an application to become party under Order 1 Rule 10 CPC which was allowed on 06.8.2013 and he was substituted in place of Sham Lal J.D. No. 2 as he allegedly purchased the share of Sham Lal. Thereafter, he moved an application for starting denovo proceedings. The decree holder also filed an application for appointment of a Local Commissioner for the purpose of preparing the scheme of partition by metes and bounds. This application was contested by filing the reply by defendant No. 1 Roshan Lal and substituted defendant No. 2. Varun Taneja.

The learned trial Court, by a consolidated order, disposed of both the applications while appointing Sh. Sahil Joshi, Civil Ahalmad, an Engineering Graduate, as a Local Commissioner to visit the spot and make the measurement of the suit property by means of measuring tape and suggest the mode of partition of the suit property into four equal shares/parts.

The application filed by the present applicant for starting the proceedings denovo was dismissed on the ground of being not maintainable.

On the last date of hearing i.e. 23.7.2014, a query was put to the learned counsel for the petitioners as to how the revision petition against the appointment of Local Commissioner is maintainable and the case was adjourned for today.

Learned counsel for the petitioners relied upon a judgment of this Court in the case of Om Parkash Vs. Kishan Chand and Others, and submitted that the Local Commissioner can be appointed by taking the application filed by non-applicant u/s 151 CPC as it is silent as to under which provision the same has been filed.

As regards starting the proceedings denovo after substituting respondent No. 2 Varun Taneja in the suit, it is submitted that once he has purchased the property in dispute from Sham Lal, interest has accrued in his favour for which he should be given opportunity to defend.

I have heard learned counsel for the petitioners and after examining the record, am of the considered opinion that this revision petition must fail.

Insofar as the first question of appointment of Local Commissioner is concerned, learned counsel for the petitioners has failed to cite any law that if the Local Commissioner is appointed under order 26 Rule 9 CPC, revision is maintainable. All that has been shown by the learned counsel for the petitioners is the judgment in the case of Om Parkash (Supra) in which this Court has held that if the Local Commissioner is appointed to lock the premises, it is not strictly an Order under Order 26 Rule 9 but an order u/s 151 CPC, against which revision is maintainable.

Insofar as the prayer of the petitioners for starting the proceedings denovo after having substituted defendant No. 2 is concerned, the application has been rightly dismissed because once the petitioner has purchased the property in dispute during the pendency of the suit and substituted defendant No. 2, he has stepped into his shoes and cannot claim to contest the suit, rather he has to contest the suit from where defendant No. 2 has left.

In view of the above, I do not find any merit in this revision petition and the same is hereby dismissed.