MUNGESHWAR SAHOO, J.:–The defendant No.6 has filed this First Appeal against the final decree dated 03.08.1982 passed by the learned Sub Judge I, Chapra in partition suit No.127 of 1975 whereby the court below rejected the objection to the Pleader Commissioner’s report filed by the defendant No.6-appellant.

2. It appears that the plaintiff-respondent No.1 filed the partition suit claiming 1/6th share in the suit property. According to the plaintiff, Rameshwar Upadhyay had three sons namely Ram Kailash Upadhyay, Ram Bilash Upadhyay and Bhagwati Sharan Upadhyay. Ram Kailash Upadhyay had two sons i.e. plaintiff, Awdhesh Bihari Sharan Upadhyay and the defendant No.6, Bipin Bihari Upadhyay. Defendant Nos.1 to 5 represent the branch of Ram Bilash Upadhyay and Bhagwati Sharan Upadhyay. The suit was decreed and plaintiff’s share to the extent of 1/6th was declared. It was also held that the defendant No.6 has got 1/6th share and the remaining 2/3rd share belonged to the other two branches i.e. defendant Nos.1 to 5. It is admitted that no appeal was filed against the preliminary decree. The Pleader Commissioner was appointed for preparation of final decree. The Pleader Commissioner submitted the report and thereafter the defendant No.6 had filed the objection to the Pleader Commissioner’s report. By the impugned order and final decree, the objection of the defendant No.6 has been rejected. Against the order and final decree, the defendant No.6 has filed the present First Appeal.

3. The learned senior counsel, Mr. K.N.Choubey appearing on behalf of the appellant submitted that the learned court below has disposed of the objection of the appellant in most perfunctory way. In fact, the Pleader Commissioner had not visited the suit land and has given the valuation of the suit plots without measurement and without examining the nature of the suit land. The learned counsel further submitted that no notice was served on the appellant and, therefore, he did not participate in the proceeding before the Pleader Commissioner but the learned court below wrongly held that the appellant took part in the proceeding. The learned counsel further submitted that while dividing the bamboo clumps, the Pleader Commissioner divided the same without counting the bamboo clumps and, therefore, also the Pleader Commissioner’s report is liable to be set aside. Further, the appellant had constructed house on plot Nos.1871 of 1872 but the Pleader Commissioner without visiting the said plots, mentioned in the report, that both the plots are agricultural land, on this score alone, the Pleader Commissioner’s report is liable to be set aside. According to the learned counsel, by the High Court, a Pleader Commissioner was appointed while hearing the stay matter and the Pleader Commissioner appointed by the High Court gave a report to the effect that there is construction of house containing two rooms and household articles are also there. However, while allotting the share, the said house constructed by the defendant No.6-appellant was not given in the share of the appellant, therefore also, the Pleader Commissioner’s report is liable to be set aside.

4. During the course of the argument, the appellant expressed his grievance mostly with regard to these two plots i.e. 1871 and 1872. The learned counsel submitted that since the appellant is in possession of the same and is mentally attached with the same, the Pleader Commissioner should have allotted the house in toto in favour of the appellant following the principle that convenience of the parties should be respected while allotting the lands. Here, the appellant is in animus possidendi of the land with the structure and if that part is given to the plaintiff, he is ready to adjust his brother, plaintiff in the share of the appellant in other land. So far the share of defendant Nos.1 to 5 is concerned, the same was not challenged. The learned counsel further submitted that while allotting the share in the ancestral house,

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