GEORGE DAVID PEREIRA Vs. WILLIAM DAVID PEREIRA

JUDGEMENT

(1.) THIS is a suit for partition and separate possession of plaintiff's half share in the suit property described in para 1 of the plaint and shown in the map annexed to the plaint. In this suit after written statement was filed, a commissioner was appointed for measurement of the suit property in order to ascertain whether the property can be partitioned or not. Thereafter defendant was asked by the Court to get the property measured through an architect. Issues were framed. At the stage of final hearing of the matter, learned Counsel for the plaintiff stated that in view of the fact that there is no dispute regarding the half share of the plaintiff, a preliminary decree for partition and possession of half share of the parties be passed and the actual partition be effected by metes and bounds and the objections thereto on the ground that property can not be partitioned by metes and bounds can be decided in the final decree proceedings. The learned Counsel for the defendant has no objection to pass a preliminary decree. In view of this the learned Advocate for the defendant is not pressing the remaining issues. Considering the nature of dispute and the admitted position, I am inclined to pass a preliminary decree for partition and separate possession of half share of the plaintiff in view of the admission of the same contained in the written statement of the defendant. Hence I pass the following order :

(2.) SUIT is decreed and it is declared that the plaintiff has half share in the suit property described in para 1 of the plaint and as shown in the map annexed to the plaint. Plaintiff is entitled to partition by metes and bounds. In case it is found that actual partition can be effected of the spot in the situation in which the property exists today, actual partition of property by metes and bounds shall be effected as per report of the commissioner appointed in the final decree proceedings by the Court. While appointing the Commissioner in final decree proceedings, Court shall as far as possible appoint a surveyor as well as a valuer . In case it is not possible to appoint one person, the Court may appoint two Commissioners, one of them should be a surveyor and another a valuer . After execution of the commission and submission of reports, the Court shall decide as to whether partition by metes and bound can be effected and if the Court comes to the conclusion that no partition can be effected, the Court can consider the alterative as per the report of the valuer . Commissioners shall also refer to the partition deed. One half portion of the rent deposted with the Receiver after excluding all the expenses of Receiver from the entire rent shall be paid to the defendant.

(3.) CERTIFIED copy expedited. Preliminary decree accordingly.