GARJA SINGH Vs. ORCHID SPACE DESIGN LLP

JUDGEMENT

(1.) This is a revision petition filed under Article 227 of the Constitution of India for setting aside the order dtd. 3/1/2022 (Annexure P-9) passed by the Additional Civil Judge (Senior Division), Kharar (for short, the trial Court), on the objections dtd. 1/11/2021 (Annexure P-6), filed by respondent No.2700 against the report of the Local Commissioner dtd. 9/12/2019 (Annexure P-4) providing for the mode of partition as per the order dtd. 9/10/2019 (Annexure P-3) of the trial Court and also on the application dtd. 1/12/2021 (Annexure P- 8) filed by the same respondent for appointment of fresh Local Commissioner, whereby the trial Court has framed a fresh issue and fixed the case for evidence of the objector on merits, and further, illegally and erroneously has discarded the report of the Local Commissioner dtd. 9/12/2019 (Annexure P-4) and ordered for a fresh Local Commissioner to be appointed after disposal of the issue framed therein.

(2.) It is argued by the counsel for the petitioner that the Court below has gone wrong in law in reopening the entire issue of ownership qua the properties to be partitioned. The share of the petitioner, which is to be separated already stood determined by way of preliminary decree.

(3.) During the partition proceedings, the respondents never made any request for preparation of separate parcels of land to give possession to them qua their alleged shares. Hence, it is only the share of the petitioner which was to be separated and qua which the separate possession was to be given. On order of the trial Court only the Local Commissioner had suggested the mode of partition and share of the petitioner. The counsel has further submitted that the trial Court has, in fact, reopened the entire issue by framing an issue to invite evidence as to the ownership and possession qua respondent No.2700 in the suit, who is respondent No.1 in the present petition. It is further submitted that neither the petitioner is concerned with the alleged ownership of that respondent, nor is he concerned with the possession of the said respondent as such. It was for the said respondent to raise his plea qua ownership, before passing of the preliminary decree, if at all, he had any title to any share in the property.