KANSHI RAM Vs. HARI RAM

JUDGEMENT

(1.) This is a plaintiff's appeal from the final decree in a suit for a partition of 2/3rd share belonging to the plaintiff in double store houses situate in the abadi of village Jonuwan, tehsil Sonepat.

(2.) The plaintiff instituted the suit in April, 1958 praying for a decree for possession by partition of his 2/3rd share in the houses mentioned above and it was urged that the plaintiff's share be separated without the partnership of anybody else and actual possession delivered to him. An ex parte preliminary decree was passed on 3rd July, 1958, in accordance with the plaintiff's prayer and Shri Suba Singh Pleader was appointed as a Local Commissioner for reporting the mode of partition after inspecting the spot and recording evidence. If the houses in dispute were not found to be partible then according to the decree they were to be auctioned. In that case the plaintiff was to get 2/3rd share of the auction proceeds. The property in question though described as two houses, it seems really to consist of a small pucca structure and a sort of a kacha kotha in a gher. The Local Commissioner made his report on 23rd July, 1958 and finding pucca haveli as shown in the plan Exhibit P.1 to be impartible directed that the kacha house, as shown in plan Exhibit P.2 should be given to Hari Ram defendant as his share and pukhta haveli to Kanshi Ram plaintiff. In order to compensate the defendant the plaintiff was directed to pay Rs. 1,000/- to Hari Ram so as to enable him to convert the kacha house into a suitable building fit for residence. It is noteworthy that this report was made by the Local Commissioner ex parte as Hari Ram had not cared to appear before him.

(3.) Objections were preferred against this report and the Court after hearing arguments considered inspection of the spot necessary. The site was accordingly inspected by the Presiding Officer (Shri S.S. Raikhy) on 29th January, 1960. In the inspection note the Presiding Officer has observed that the stair-case shown in the plan Exhibit P.1 and the kotha shown in the plan Exhibit P.2 did not exist on the spot. It has further been stated that Hari Ram was prepared to accept 1/3rd share of the house, if it were to be divided either from the northern or the southern side and he were given 1/3rd share in that manner. The width of the portion which the defendant would thus get would be approximately only 5 feet. But the defendant was willing to accept it. The plaintiff's portion on the other hand would be about 10 feet wide which the Presiding Officer did not consider unreasonable in the circumstances. He, however, did not find any other difficulty in partitioning the property. After this inspection the Court went into the objections raised against the Local Commissioner's report and came to the conclusion that the property in suit being capable of partition the Local Commissioner's report was liable to be set aside. After setting aside that report the Court appointed Shri Dalpat Singh, Pleader, Sonepat as Local Commissioner for suggesting a suitable mode of partition. In this order the Court has also observed that there was no dispute about the gher being partible and as regards the house it was only the defendant who could have objected to the narrow width of the portion of the property which fell to his share but he was satisfied with the portion which would come to the share by this mode of partition.