Sahib Singh vs Inderjit Singh and Others

Sat Pal, J.

(1) This is a suit for portion and perpetual injunction filed by the plaintiff against the defendants in respect of Plot No. A-8/39, 352.89 sq. yds. in Rana Partap Bagh, Delhi Along with the entire building constructed thereon comprised of ground floor, mezzanine Floor, first floor and second floor (terrace). A preliminary decree for right to enforce partion was passed on 10th July, 1989. On the same date Shri S.B. Vohra, then Dy. Registrar of this Court, was appointed Local Commissioner to demarcate the property and ascertain whether it could be divided by metes and bounds. Shri Vohra, the Local Commissioner submitted his report dated 28th November, 1989 wherein it was stated that it was possible to divide the property by metrs and bounds in case the additions and alterations as suggested by the Architect in his report were approved.

(2) After the Local Commissioner had filed his report, the case came up for hearing on 16.2.90 when the plaintiff was present in person and notice of the filing of the report of the Local Commissioner was issued to the defendants for 5th April, 1990. The defendants appeared on 5.4.90. Thereafter the defendants had been appearing till 25th November, 1991, but did not file any objection to the report of the Local Commissioner. On 21st February, 1992 none appeared on behalf of the defendants and the defendants were proceeded against ex-parte. Thereafter the plaintiff moved an application bearing No. 1A 2087/92 under Order 20 Rule I and proviso I and 2 read with Section 151 of the Code of Civil procedure. In this application it has been prayed that the preliminary decree be confirmed in terms of the report of the Local Commissioner Along with order for payment of mesne profit as prayed in is 8189/90.

(3) is 2087/92 came up for hearing on 17th August, 1993. During the course of arguments, the learned counsel for the plaintiff submitted that the final decree be passed in terms of the report submitted by the Local Commissioner. He further submitted that is 8189/90 regarding payment of mesne profits may be listed for hearing on some other date.

(4) .1 have given my thoughtful consideration to the submissions made by the learned counsel for the plaintiff and have perused the records. From the records, I find that the defendants were proceeded against ex-parte vide order dated 21st February, 1992 . The records further show that none of the parties has filed any objection to the report of the Local Commissioner dated 28th November, 1989.

(5) In view of the above discussion, I am of the opinion that a final decree for partion should be passed on the basis of the preliminary decree for partition passed on 10th July, 1989readwiththereport of the Local Commissioner dated 28th November, 1989 subject to payment of Court Fees. Ordered accordingly. The parties are, however, left to bear their own costs. Let a decree be drawn in the aforesaid terms. The report of the Local Commissioner Along with the report of the Architect will form part of the decree. The Local Commissioner will be paid a further sum of Rs. 1500.00 which will be borne by the parties in equal share. With this order suit No.982/83 and is 2087/92 stand disposed of.