1. This Chamber Summons has taken exception to the report of he Commissioner, High Court, Bombay dated 24.10.2008 made upon the preliminary decree being passed in the suit.

2. The suit is for partition. The Plaintiff claims 1/3 rd share in the suit property (the suit was filed by the original Plaintiff. The present plaintiffs are her heirs brought on record pending the suit. They shall be referred to as the Plaintiff). The suit property is a tenanted building which has seven residential flats, one show room, one shop and one hoarding. The Plaintiff inter alia alleged in paragraph (13) of the plaint that the Defendant s in collusion and without knowledge and consent of the Plaintiffs have transferred the tenancy of the ground floor premises (which consists of show room and the shop). The Plaintiffs alleged in paragraph (14) of the plaint that the Defendant s unauthorisedly and wrongfully created tenancy in respect of the third party for the ground floor premises. The Plaintiff claims that tenancy is unauthorized and illegal and not binding upon the Plaintiff. The Plaintiff also averred that she apprehended that the Defendant s would create further rights in other parts of the suit property. The Plaintiffs averred in paragraph (16) of the Plaint that the alterations were made in the premises for attempting to create further rights and hence she applied for partition and separate possession of the suit property. The Plaintiff also averred in paragraph (18) of the Plaint that Defendant s committed act of waste and would diminish the value of the suit property which would tantamount to creating an encumbrance thereon.

3. The Plaintiff has sued for the declaration of her 1/3 rd share, partition of the suit property by metes and bounds, inquiries to be made for partition in the property and directions to be given for appointment of Commissioner for effecting partition for perpetual order of injunction restraining transfer, creation of third party rights or disposing of any part of the premises and for making all inquiries and taking account s in respect of the rents and profits recovered by Defendant s No.1 to 4 and Defendant s No.5 & 6 (they shall be referred to as the Defendant s).

4. Thethree shares in the building are stated to be of the Plaintiffs, Defendant s No.2, 3 & 4 and of Defendant s No.5 & 6. This suit is concerned with the Plaintiff's 1/3 rd share, the other Defendant s have neither claimed nor disputed their rights in the suit premises.

5. The evidence was led to determine the declarative relief prayed for by the Plaintiffs. By Judgment upon evidence dated 16.07.2002 / 24.07.2002 of this court the suit came to be decreed in favour of the Plaintiffs in terms of prayer (a), (b) & (d). Hence the declaration of the Plaintiff's 1/3 rd share in the suit property, order for partition the property by metes and bounds and the order of injunction came to be passed. Further Commissioner came to be appointed under prayer (c) and in terms of prayer (g). This related to inquiries to be made and account s to be taken in respect of rents and profits recovered by the Defendants.

6. The parties have led evidence before the Commissioner for taking account s (Commission). The Commissioner has made inquiries and taken account s in respect of rents and profits recovered by the Defendant s from the tenants in the suit building.

7. The rents and profits recovered from the seven residential flats is accepted by the Plaintiffs. The rent receipt book has been produced by the Defendant s. The rent receipt book shows the basic rent, property tax, repairs, water charge, electricity and land tax separately collected from all the tenants throughout . The Plaintiff has claimed only basic rent collected, other collection being expenses which must necessarily have been expended by the Defendants whilst in the management of the suit property. The Commissioner has considered the total net basic rent collected by the Defendant s and not paid to t