The Court emphasized the need for proper measurement of plots as per sale deeds for partition and reiterated the position of law in respect of partition of immovable properties through the Court Commissioner.

JUDGMENT :

1. By this petition under Article 227 of the Constitution of India, the petitioners have impugned an order dated 29.01.2019 passed by the Jt. Civil Judge Senior Division, Aurangabad, below Exh. 130 in Civil M.A. No. 836/2014, by which the learned Judge had rejected the report of the Court Commissioner appointed for effecting partition of the suit properties amongst the petitioners and respondents.

2. The case has a chequered history, however, relevant facts germane for decision of the petition can be stated as follows :

Petitioners are the legal heirs of deceased Basant Singh, who was original plaintiff in Special Civil Suit No. 50/71. Respondents are the legal heirs of original defendant no. 2, namely, Avatar Kaur. Special Civil Suit No. 50/71 filed by the petitioner/original plaintiff came to be decreed by virtue of a preliminary decree passed by Civil Judge Sr. Division on 24.12.1999. The operative part of the judgment is extracted below.

“ORDER

1. The suit is partly decreed.

2. It is declared that the plaintiff and defendant no. 2 Autarkaur have 1/6th share each in the properties bearing Municipal No. 5-5-26 and 5-5-29 (purchased vide three sale deeds at Exhs. 339 (6608 sq.yards), 716 (141 x 22 sq.feet), 998 (4367 sq. yards).

3. It is ordered and decreed that the above referred properties shall be partitioned by appointment of a Court Commissioner on the application of the plaintiff and the plaintiff’s 1/6th share shall be separated by metes and bounds and the defendant is directed to handover such 1/6th share in the above referred properties as shall be determined by the Court Commissioner and shall be directed by the Court.

4. On the application of the plaintiff, an enquiry into mesne profits in respect of the plaintiff’s share shall be held for the period from three years prior to the date of suit till the delivery of the possession. For such enquiry due regard shall be given to the fact that the plaintiff is also occupying some rooms and the part of the plot bearing no. 5-5-29.

5. The plaintiff’s suit for partition and separate possession of the remaining properties and for rendition of accounts is hereby dismissed.

6. It is ordered and decreed that the plaintiff shall pay to the defendant no. 1 compensatory costs of Rs. 3000/- for making partly false and vexatious claim. Parties shall bear their normal costs.

7. Preliminary decree shall be drawn up accordingly.

Dt: 24.12.1999

Sd/-

4th Jt. Civil Judge (S.D.),

Aurangabad.”

3. Undisputedly, the preliminary decree by which respective shares of the parties declared by the trial Court has been maintained till the Supreme Court.

4. It is the matter of record that during the pendency of the Second Appeal before this Court bearing Nos. 644/2004 and 171/2005, a compromise had been entered into by the parties, pursuant to which, by an order dated 01.04.2014, this Court had recorded the compromise which includes relinquishment of certain rights by the original plaintiff and defendant no. 1 amongst each other.

5. Since the decree attained finality, a Court Commissioner came to be appointed in the Execution Proceedings No. 38/2014. Subsequently, the said proceedings were converted to MARJI No. 836/2014 for finalization of the decree. An application was moved by respondent no. 1 below Exh. 49, for appointment of a Court Commissioner. By an order dated 01.04.2016 in MARJI No. 836/2014, a Court Commissioner was appointed. The Court Commissioner had submitted a report at Exh. 88, dated 31.05.2016. The petitioner, however, raised an objection to the said report which is at Exh. 99. The learned Judge rejected the report Exh. 88 by an order dated 21.07.2017.

6. The respondent thereafter moved another application below Exh. 115, inter alia praying for re-issuance of writ to the Court Commissioner. By an order dated 15.12.2017, the learned Civil Judge Sr. Division granted the application below Exh. 115 in MARJI No. 836/2014. The Court Commissioner carried out the work of Commission and tendered h