1. This intra court appeal impugns the order dated 13th March, 2014, of a learned Single Judge of this Court (exercising ordinary original civil jurisdiction, in CS(OS) No.2115/1999 for partition of immovable property) appointing a Court Commissioner to suggest the mode of partition of the property and to on behalf of the appellant/defendant execute documents and take other steps for conversion of leasehold rights in the land underneath the property into freehold, in pursuance to a preliminary decree for partition declaring the respondent/plaintiff and the appellant/defendant to be having 50% undivided share each in the property.

2. The impugned order is admittedly not appealable under the Civil Procedure Code (CPC), 1908 and the appeal has been preferred under Section 10 of the Delhi High Court Act, 1966. Though the appeal comes up today for the first time but since the counsel for the respondent/plaintiff appears on caveat, we have, without entering into the question of maintainability of the appeal (which is doubtful), heard the counsels on merits.

3. The respondent/plaintiff instituted the suit from which this appeal arises inter alia for partition of house No.15, Babar Road, Bengali Market, New Delhi. Vide order dated 28th August, 2012 in the suit, a preliminary decree declaring the appellant/defendant and the respondent/plaintiff to be having 50% undivided share each, was passed. The contention of the appellant/defendant that the property being situated on leasehold land could not be partitioned, was held to be misconceived, observing that this Court in Chiranji Lal Vs. Bhagwan Das AIR 1991 Delhi 325 and Inderjit Singh Vs. Tarlochan Singh (1991) 20 DRJ 281 has held that where the land is leasehold, parties / co-owners will be left with undivided share in accordance with the preliminary decree in the leasehold rights in the land and the superstructure will be partitioned, if possible and if the superstructure is not capable of being partitioned, the property will be sold (I may add that in Madan Lal Vs. Kuldeep Kumar, Mohinder Singh Vs. Kartar Lal, and Ram Lal Sachdeva Vs. Sneh Sinha AIR 2000 Delhi 92 also the same view has been taken).

4. The appellant/defendant preferred RFA(OS) No.98/2012 against the aforesaid preliminary decree which was dismissed vide judgment dated 31st October, 2012 with costs of Rs.2 lakhs on the appellant/defendant for having not only taken a frivolous defence in the suit but having also delayed the disposal of the suit by persisting in the said defence. The reasoning aforesaid given by the learned Single Judge on the contention of the appellant/defendant of the leasehold tenure in the land underneath the property being not capable of being partitioned, was affirmed by observing that if on land which is impartible a superstructure is constructed, the superstructure is capable of being partitioned.

5. The appellant/defendant preferred Special Leave Petition (SLP) (Civil) No.CC 10665/2013 to the Supreme Court against the judgment aforesaid of the Division Bench and which was dismissed in limine on 15th July, 2013.

6. The preliminary decree for partition having so attained finality, the learned Single Judge, as aforesaid, appointed Court Commissioner to report whether the property i.e. the superstructure could be partitioned by metes and bounds. The contention of the counsel for the respondent / plaintiff that, if the property were to be ultimately sold, such sale would be expeditious and beneficial to the parties if the leasehold rights in the land were to be converted to freehold (as is now possible) was also accepted and since the appellant / defendant was not agreeable thereto, the Court Commissioner was also empowered to do all acts / deeds and things on behalf of appellant / defendant for such conversion.

7. The counsel for the appellant/defendant has argued:

(i) that the land admeasuring 287.5 sq. yds. underneath the property is leasehold property, lease whereof was granted in