(1) In the High Court of Judicature for Rajasthan At Jaipur Bench, Jaipur J U D G M E N T In S.B. Civil First Appeal No.752/2007 Satpal Singh Vs. Ajit Singh and others & S.B. Civil Cross Objection No.25/2008 In S.B. Civil First Appeal No.752/2007 Satpal Singh Vs. Ajit Singh and others Date Of Judgment :: 23.3.2009 P R E S E N T Hon'ble Mr. Justice Jitendra Ray Goyal Mr. S.R. Surana with Mr. K.K. Chhawal Mr. N.K. Garg, for appellant-defendant. Mr. Ajeet Bhandari, for plaintiff-respondent. Mr. S.S. Hora, for respondent-defendants-cross objectors. ............... By the Court :- (2) This is first appeal under section 96 of the Code of Civil Procedure (in short the Code) filed by defendant no.2 Satpal Singh against the judgment and final decree dated 13/8/2007 passed by Additional District Judge (Fast Track) No.3, Jaipur City, Jaipur in a suit for partition, rendition of accounts, declaration, perpetual injunction and mesne profits. 2. The subject matter of the suit is the property bearing no.308 situated at Adarsh Nagar, Jaipur. A suit for partition, declaration, mesne profits and injunction was filed by the plaintiff Ajit Singh against his father Rawail Singh and the appellant Satpal Singh. Sardar Rawail Singh also filed a suit against Ajit Singh for possession in regard to the same property in dispute. The suit filed by Sardar Rawail Singh has been dismissed vide order dated 30/10/1999 wherein it has been found that Ajit Singh is in possession of the property not as a licensee but as a joint owner of the property and the said finding of the trial court was confirmed by this Court under the judgment dated 28/11/2001 passed in S.B. Civil First Appeal No.20/2000 and the suit filed by the plaintiff (3) Ajit Singh has been decreed with the direction that the present plaintiff Ajit Singh is entitled for half of the portion in the suit property and the same is liable to be divided by metes and bounds and he was also held entitled for rendition of accounts, mesne profits and injunction. Against that preliminary decree no appeal has been preferred, therefore, the same has become final. After passing of the preliminary decree the trial court has appointed commissioner while preparing the final decree in the matter. The parties filed the objections on the report of the commissioner dated 15/12/2005. After hearing the parties the learned trial court passed the final decree in favour of the plaintiff Ajit Singh under the impugned judgment and decree dated 13/8/2007. Feeling aggrieved, this appeal has been preferred by the appellant-defendant Satpal Singh and cross objections have also been filed by respondents no.2/2, 2/4 and 2/5. Therefore, at the request and with the consent of the parties the appeal and the cross objections have been heard together and are being decided by this common judgment. 3. The main submission on behalf of the (4) appellant is that the trial court failed to partition the property by metes and bounds and the plaintiff Ajit Singh has been given more than half of the portion ignoring the principle of equity while dividing the property. It was then submitted that out of total ten shops five shops were given to the plaintiff Ajit Singh and the remaining five shops were allocated to the appellant and rest of the other beneficiaries under the will of Sardar Rawail Singh. It was also submitted that as a matter of fact the total residential portion which is in possession of Ajit Singh comes to the tune of 1813.14 square feet while the remaining portion earmarked for the rest is only 1794.08 square feet, therefore ignoring the fact that Ajit Singh is having possession over more than half of the residential portion of the property the trial court allowed one more room and passage marked as 15-F which is in possession of the appellant. 4. Learned counsel appearing for the plaintiff-respondent Ajit Singh while supporting the impugned judgment and decree submitted that property in dispute is having two side roads. Northern (5) side road is 60 feet which is a main road of the area and the appellant Satpal Singh and other respondents have been given the portion facing the front side road as well as western side of the road with wide open space which may also be converted into big showroom and shops, therefore, considering the market value of the entire property and also the fact that as far as possible the persons who are having the property in their possession may least disturb, the trial court rightly passed the impugned decree. It was then submitted that the plaintiff-respondent Ajit Singh is prepared to exchange the property which came in his share under the decree with the property given to the appellant and other respondents and in doing so he would be very happy since the market value of the property given to the appellant and other respondents is much more than the value of the property came into the share of the plaintiff-respondent which is virtually back portion of the house and having very small and narrow entrance in his residential portion. 5. Learned counsel appearing for the other respondents while supporting the impugned judgment (6) and decree submitted that after considering the entire material including the valuation report, other factors and also required considerations in such partition matters, the trial court rightly passed the final decree but did not specify the different portions of the objector-respondents in the suit property in the light of the will executed by their father late Sardar Rawail Singh under which the appellant Ajit Singh also derived rights in the disputed property. 6. I have considered the rival submissions made at the bar. Before analyzing the matter in hand on merit, it is important to bear in mind that the partition of immovable property has to be effected by metes and bounds in proportion to the respective shares of the parties as has been decided by the court while granting preliminary decree. It is also settled proposition of law that metes and bounds does not mean that every item of the property is to be divided between co-sharers. The only requirement is that the property allotted to each co-sharer should bear approximately the same value as corresponds to his share. It may not be possible to divide every property (7) by metes and bounds. The allocation of properties of unequal value may come to the share of a member of a joint family at the time of effecting partition but for that necessary adjustments have to be made keeping in view the valuation report and also the convenience of the parties, therefore, no hard and fast rule can be laid down and it depends upon the nature of the immovable property, number of such properties and also the number of members to whom it is required to be divided. While giving effect to partition it may also be possible that properties of a larger value may go to one member and properties of lesser value may go to another. What is necessary is the equalisation of shares and for that adjustment of the value is by providing the property of equal value or by providing for payment by one who gets the property of higher value. 7. Here in the present case, it is not disputed that appellant is found entitled to receive half of the share in the disputed property and the preliminary decree does not envisage further division of the half share of the property came into the share of (8) the appellant and other respondents except respondent no.2 Ajit Singh, therefore, the submission made by the respondent-objectors that their partitions in the property ought to have been earmarked in final decree does not carry weight. Now so far the controversy under appeal is concerned, the disputed property contains ten shops, residential portion and also the open space. The house is having two side roads. North side road which is a main road is having 60 feet width and the width of western side road is 40 feet. The trial court has given five shops facing western side of road and the residential portion which is situated at the back side of the house having 2.6 feet wide entry from western side of road to the plaintiff-respondent no.2 Ajit Singh while the appellant and other respondents have been given five shops, out of them one shop is facing both the roads, one another shop is on the northern side of the main road and three shops are facing western side of the road, apart from this residential portions having wide entrance on the main road along with 29 feet wide open space was also given. The area of the commercial shops came in the (9) share of the appellant and respondents appears to be bigger in size than the area of the shops given to the plaintiff-respondent. Having considered the market value of the different shops, open land, other residential portion and also keeping in view that as far as possible the parties should be accommodated in the portion which is in their possession, the trial court after due exercise partitioned the property in dispute with metes and bounds which cannot be said to be disproportionate. It is also worthy to mention that plaintiff-respondent during the course of arguments made a proposal to exchange the property which came in the share of the parties but other respondents including the appellant Ajit Singh declined to accept this proposal. 8. In view of the entire discussion made here-in-before and keeping in view the entire facts and circumstances, I do not find any illegality, impropriety in the impugned judgment and decree. 9. Consequently, this appeal along with stay application as well as cross objections is hereby dismissed. (10) (J.R. Goyal),J. V.S. Shekhawat/- Jr. P.A.