( 1 ) THE present suit was instituted by the plaintiffs against the defendants, seeking for declaration and partition in respect of the property bearing No. 313, Faiz Road, Gali Nos. 10 and 11, Karol Bagh, New Delhi. The plaintiffs also prayed for a declaration that the Agreement to Sale dated 15. 1. 1973, 18. 12. 1974 and 6. 12. 1978 pertaining to the aforesaid suit property are not legal and valid and not binding upon the plaintiffs.

( 2 ) ON the admission of the plaintiffs and the defendants No. 1 and 5, this Court by order dated 8. 3. 1996 passed a preliminary decree in the suit declaring the share of the plaintiffs and the defendant No. 1 in the suit property as half share and the share of the defendant No. 5 in the light of the judgment in the case of Sardar Singh Vs. Smt. Krishna Devi and Am. reported in Vol. 54 (1994) DLT 500 (Supreme Court) as the remaining half in the suit property.

( 3 ) BY a further order, the Court appointed Mr. V. K. Seth, Advocate, as a Local Commissioner to report as to whether the suit property could be partitioned/divided by metes and bounds between defendant No. 5 and defendant No. 1 (with plaintiffs) as per the share determined above. It was made clear that the aforesaid preliminary decree with regard to shares of defendants Nos. 1 and 5 as ordered would not effect the right of the defendant No. 1 and 6 in any manner either in the execution proceedings initiated by the defendant No. 6 which was pending before the Executing Court or in the present suit. It may be stated that the defendant No. 6 has been declared as the owner in respect of the share owned by the defendant No. 1 in the suit property and obtained a decree which is pending for execution.

( 4 ) THE Local Commissioner heard the parties, inspected the suit property and considered the documents filed by the parties. Thereafter, the Local Commissioner submitted his report to this Court on 5. 8. 1996. In the said report, the Local Commissioner has opined that the property could be divided by metes and bounds and the parties could mutually agree for the portion which they want to have or in case of differences, the respective portions could be decided by draw of lot.

( 5 ) AS against the aforesaid report filed by the Local Commissioner, the plaintiffs filed an objection, contending inter alia, that the Local Commissioner has erred in holding that the property could be divided by metes and bounds. In the objection filed by the plaintiffs, the ground for which the property could not be divided by metes and bounds have been set out.

( 6 ) I have heard the learned counsel appearing for the plaintiffs as also the counsel appearing for defendant Nos. 5 and 6.

( 7 ) THE first contention raised by the counsel for the plaintiffs that the property is not divisible by metes and bounds cannot be accepted in view of the specific observations of the Supreme Court in the case of Sardar Singh Vs. Smt. Krishna Devi andanr. reported JT 1994 (3) SC 465. The Supreme Court in the aforesaid case has specifically held that the present suit property is divisible and could be divided. In that view of the matter, the first objection of the plaintiffs stands rejected.

( 8 ) THE next submission of the learned counsel for the plaintiffs is that the terms of the lease specifically prohibits division of property and as such the property could not be divided by metes and bounds. In this connection, the counsel drew my attention to the provisions of Clause 4 (d) of the Lease Deed wherein, it has been stipulated that there could be no sub-division of the land. However, it is to be noted that the suit property consists of not only land but also the superstructure standing thereon. Accordingly, even if it is held that the land beneath the superstructure may not be divisible, there is no bar under any law to make any division with regard to the superstructure standing on the land. In this connection, reference may also be made to the decision of this Court