SOPA RAM Vs. GAMNA RAM

JUDGEMENT

(1.) Reserved on 11/11/2021 Pronounced on 21/12/2021Appellants-Defendants have preferred this first appeal under Sec. 96 C.P.C. to challenge the impugned judgment and decree dtd. 27/7/2004 passed by Additional District Judge (Fast Track) No.2, Sirohi (for short, 'learned trial Court') in Civil Original Suit No.16/2003 titled as "Gamna Ram Vs. Sopa Ram".

(2.) Briefly stated the facts of the case are that a civil suit was filed by plaintiff-Gamna Ram (respondent herein) against the defendant-Sopa Ram (appellant herein) with the submissions, inter alia, that one ancestral property of joint ownership ad measuring 5959 square feet and four corners of the property are mentioned at para No.l of the plaint. It was averred that the parties to the litigation claiming half-half share in the property. In the year 1970-72, the plaintiff had raised a construction of pucca house in his share of the plot for the purpose of residence at his own cost; as the patta in respect of the land in question had not been issued, the concerned Nagar Palika had issued a notice to the plaintiff treating him to be an encroachee upon the land; after receiving the notice aforesaid, the plaintiff had requested the defendant to make proceeding in the Nagar Palika, Sirohi; on being requested, the defendant had got regularized the land measuring 3520 square feet in his name whereas, the amount of Rs.2047.00 as regularisation fee had jointly been borne by both the plaintiff and the defendant; on being asking by the defendant, the plaintiff had presented an application for regularisation of rest of the land in his favour but that application had been rejected; the patta of the whole of the land was issued in the name of the defendant and for this reason, a dispute arose between the parties and ultimately, a compromise had been entered in the presence of Ex. Chief Executive Officer Amar Singh Yadav on 20/4/1992; despite of that compromise, the defendant had not complied with the conditions of the compromise; the land which was regularized on the basis of the compromise was requested to be partitioned in the equal share amongst the parties and a decree was requested to be passed accordingly; on this request, vide order dtd. 7/1/2004, the Court concerned had passed a preliminary decree partitioned the land in question as mentioned in para No.4 of the plaint and appointed Advocate Suresh Kumar Shah to be Commissioner for the purpose of partition. Thereafter, Advocate Suresh Kumar Shah gave his report on 27/2/2004 for partition and that fact has been mentioned in the file. Along with the report, the Commissioner had also produced a map. The Commissioner had recommended the portions of the land in question to the different parties. Being aggrieved against the Commissioner's Report, the defendant had filed his objections which was replied to by the learned counsel for the plaintiff. Arguments were heard by the Court.

(3.) During the course of arguments on the objections, learned counsel for the defendant stated that before proceeding for site visit, the date was not informed to the defendant and without giving any notice, the report of the Commissioner was prepared which is not acceptable. The Commissioner had produced a notice dtd. 16/2/2004 which was given to the defendant and the report was prepared on 18/2/2004. It was contended on behalf of the defendant that the land was not equally partitioned. It was lastly prayed on behalf of the defendant that the report of the Commissioner may not be accepted and proceedings for partition of the land may be initiated afresh. While refuting the fact of not giving the notice, it was prayed on behalf of the plaintiff that the report of the Commissioner is right and therefore, the objections raised by the defendant may be rejected and final decree may be passed.