ORDER

K.Ramamoorthy, J.

1. I shall now take up suit No. 1369/95. Plaintiff Smt. Raj Kumari Srivastava is the mother of defendants 1 to 4. The fact that plaintiff is entitled to half share in the suit property is not disputed. As a matter of fact, a preliminary decree declaring the 50% share of the plaintiff in me suit property was passed on the 28th of August 1995.

2. A local commissioner was appointed to divide the property suggesting mode for division by metes and bounds.

3. In view of the fact mat the parties do not dispute the rights of the plaintiff in the suit property, I do not want to set out the facts in detail except a very few to appreciate the present situation.

4. Originally, me property belonged to Sh. Shyam Sunder Lal. He had three brothers, one of them had pre-deceased Sh. Shyam Sunder Lal. Sh.Shyam Sunder Lal died in 1938 and the estate went to the reversioners, his brother Sh. Rayu Lal and Sh. Shadi Lal.

5. By this process, Sh. Rajju Lal and Sh.Shadi Lal became owners, is a matter of admission. Sh. Rajju, Lal's wife Smt. Kela Devi died in 1963. Sh. Rajju Lal died on the 24th of March 1966. Therefore, his half, share devolved on the plaintiff Smt. Raj Kumari Srivastava. Therefore, the claim of me plaintiff to 50% share is not disputed by the defendants.

6. The other share belonging to Sh. Shadi Lal devolved on his death, on Smt. Kiran Devi, the 5th defendant.

7. The 5th defendant is entitled to other half share, is also a matter of admission.

8. The first defendant, who is the son of the plaintiff, and the second defendant, who is also son of the plaintiff, claim the other half share by virtue of some documents, alleged to have been executed by Smt. Kiran Devi, which are disputed by her. As I had already mentioned in my order dated 28.8.1995, that is a matter to be gone into in an appropriate action.

9. The Commissioner appointed by this Court Mr. Aurobindo Ghosh visited the premises i.e. 32 School Lane, Bengali Market, New Delhi. The local commissioner submitted his report with plans on 23.9.1995 At page 6 of his report, he has given an opinion that the property can be divided as suggested by him as annexure D. In paragraph 'C' on the heading ''Division of the disputed property into two equal shares and demarcation of the 50% (Fifty percent) share of the suit property to be given to the plaintiff', the local commissioner had expressed the following view as to how the plaintiff should be allotted the portion having regard to her status:-

(iii) That she is a very elderly widow;

(iv) That she has been deprived other rightful property and reinstatement of her in her own property must be so done that she an spend her last days of life in peace, enjoying freedom and independence. AND

(v) That the defendant No. 1 and 5 jointly and also defendant No. 3, are already in possession of and residing in the suit property even if assuming, without prejudice to their rights, that they are not legally entitled to do so and, therefore, me one-half share of the property to be presently and temporarily allocated to them, must be so which will cause them the minimum dislocation and discomfort in accordance with the partition, as per the orders of the Hon'ble Court. AND

(vi) Suggestions of parties before Local Commission."

10. Regarding me actual allotment, the local commissioner has proposed in the plan Annexure D that the portion marked 1 coming within the alphabets DCBE may be allotted to the plaintiff. He has noticed that the total ground area of this portion is 1880.91 sq. ft. The total area of the entire suit property is 3 762sq. ft. The local commissioner has also noticed that this portion has two sides open. The local commi