R.S.A.No.3028 of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH R.S.A.No.3028 of 2008 Date of Decision : 07.10.2009 Sadhu Ram ...Appellant Versus Sher Singh and others ...Respondents CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA Present: Mr. P.R.Yadav, Advocate, for the appellant. Mr. Sanjay Mittal, Advocate, for respondent No.1. HEMANT GUPTA, J. (ORAL) The defendant is in second appeal aggrieved against the final judgment and decree in respect of partition of plot No.425. Sher Singh, Badan Singh and Sadhu Ram alongwith their mother were owner of plot No.425. Sher Singh sought partition of the aforesaid plot. The learned trial Court dismissed the same on 9.3.1984. The appeal was accepted vide judgment and decree dated 2.2.1985 and a preliminary decree for separate possession in respect of 1/4th share to each of the three brothers and Smt. Ram Pyari, mother of the appellant, was granted. Admittedly, Ram Pyari has died and her share has gone to the parties in equal shares. Therefore, the parties are entitled to 1/3rd share each in the aforesaid plot. A Local Commissioner was appointed in proceedings of preparation of final decree. The Local Commissioner has suggested mode of partition in his report dated 10.4.2003. Sher Singh-plaintiff was R.S.A.No.3028 of 2008 2 the one, who filed objections to the report of the Local Commissioner. The learned trial Court granted the final decree accepting the report of the Local Commissioner, but by giving compensation of Rs.5000/- to defendant No.1 (the present appellant) for the reason that the plaintiff is getting 20 square yards more than his entitlement. It may be noticed that the appellant was proceeded ex parte in proceedings relating to preparation of final decree before the learned trial Court. The appellant filed an appeal before the learned District Judge. The learned first Appellate Court found that according to aks shajra Ex.P- 5 northern boundary is 6 inches more than the actual boundary shown, whereas southern boundary is 6 feet less than the actual boundary shown in the said aks shajra. The Local Commissioner has suggested the mode of partition proposing to give portion ABCD to the plaintiff-Sher Singh, whereas portion BCGH is given to the remaining co-sharers. Learned counsel for the appellant has vehemently argued that in proceedings for partition of plot No.425 by metes and bounds, the Local Commissioner has only specified portion to be given to the plaintiff Sher Singh, whereas the share of Sadhu Ram and Badan Singh has been kept joint. It is contended that the said report of the Local Commissioner cannot form basis of the decree of partition of plot No.425 in respect of 1/3rd share of each of the co-sharers. I have heard learned counsel for the parties on the following substantial question of law : “Whether the report of the Local Commissioner can form basis of the final decree, when the report specifies only share of one of the co-sharers and not of the other co-sharers?” R.S.A.No.3028 of 2008 3 A perusal of the report of the Local Commissioner shows that portion ABCD has been given to the plaintiff-Sher Singh, whereas portion BCGH has been given to the other co-sharers i.e. Sadhu Ram and Badan Singh. Out of portion ABCD, portion LMCD was in possession of Sadhu Ram, but has been given to Sher Singh. For the Thatch shed on said area, the appellant has been ordered to be compensated with Rs.5000/-. The fact remains that the share of Sadhu Ram and Badan Singh has not been demarcated. In the absence of demarcation of their respctive shares in such joint plot, the report of the Local Commissioner is incomplete. It cannot be made basis of the final decree. Consequently, the judgment and decree passed by both the Courts below, is set aside. The matter is remitted back to the learned trial Court for preparation of final decree by demarcating the share of each of the co-sharers. Parties through their counsel are directed to appear before the learned trial Court on 9.11.2009. 07.10.2009 (HEMANT GUPTA) Vimal JUDGE