AMAR NATH Vs. JHANDHU LAL

JUDGEMENT

(1.) The parties to the litigation out of which this revision petition has arisen, had joint properties in Naraingarh District Ambala. Out of them the plaintiffs filed a suit for partition in which a preliminary decree was granted in their favour entitling them to 1/3rd share of the properties. The next step taken by the trial Court was to appoint a Local Commissioner to partition the properties by mates and bounds. The Local Commissioner vide his report dated Sept. 14, 1981, expressed his inability to do so for he found that three out of the four properties were practically dilapidated and the fourth was a shop in possession of a tenant. Having regard to the number of parties being 22(sic) in all (five plaintiffs and 28 defendants) he suggested that partition could only be effected if it be made on the basis of valuation and open auction. He was of the view that it was impossible otherwise to carve out 1/3rd share from each property.

(2.) The report of the Local Commissioner (Sh. A. K. Jain Advocate) came up for consideration before the trial Court on Sept. 17, 1981, in the presence of Shri Lal Chand Jain, Advocate, for the plaintiffs. The learned Judge took into account the contents of the report. Though it is not said in the order in so many words that the report of the local Commissioner was being accepted as such but seemingly accepting the same, the learned Judge appointed the same Shri A. K. Jain as Local Commissioner requiring him to fix a date in consultation with the applicants for a wide publicity to be given of the auction and submit his report on or before September 14, 1981(sic). It is this order which is the subject matter of the challenge in this Court.

(3.) Some additional facts which are emergent from the file summoned are that in pursuance thereof the properties, were sold and have fetched price to the tune of Rs. 1,72,000/- . The auction had even taken place before the present petitioners' approached this Court. This is a factor which is sought to be used against the petitioners reflecting their contumacy and lack of bona fides.