IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Civil Revision No. 3268 of 2010 (O&M) Date of decision: April 08, 2011 Sheela Talwar .. Petitioner Vs. Anil Talwar and others .. Respondents Coram: Hon'ble Mr. Justice A.N. Jindal Present: Mr. R.M. Suri, Advocate for the petitioner. Mr. B.S. Walia, Advocate for the respondent No.1. Mr. Ravi Kumar, Civil Engineer (Local Commissioner). A.N. Jindal, J This revision petition has arisen out of the order dated 19.4.2010 passed by the Civil Judge (Jr. Division), Ludhiana, declining the application of the decree holder to allow the partition of the property by way of appointment of Local Commissioner and advising for sale of the property. The factual background of the case is that the petitioner No.1 and the performa respondents No.6 and 7 had filed a suit against the respondents No.1 to 5 for possession by way of partition of 1/4th share in the House No.62-A (old), 96 (new) bearing Municipal No.B-XIX-1037, Tagore Nagar, Ludhiana on the ground that they are the co-sharers in the house in dispute to the extent of 1/4th share each. The suit was decreed on 2.5.2002. The appeal preferred before the learned Additional District Judge, Ludhiana was also dismissed on 1.4.2003 and a preliminary decree was passed. Consequently, preliminary decree stood final and thereafter, the petitioner along with respondents No.6 and 7 filed an application on 26.9.2002 before the Civil Judge (Jr. Division), Ludhiana for passing a final decree in partition suit. On the said application, the trial court passed the order dated 2.5.2006 (Annexure P4) to the effect that the property in question cannot be partitioned and further ordered that the property could be sold and sale proceeds be divided amongst the joint owners. Aggrieved by the said order, the respondent filed Civil Revision No. 3808 of 2006 wherein this Court vide order dated 30.11.2009 Civil Revision No. 3268 of 2010 -2- *** while accepting the petition, directed the court to settle the controversy and partition the property. The relevant observations made by this Court are re- produced as under :- “Consequently and for the aforestated the revision petition is allowed, the order dated 2.5.2006 passed by the Executing Court-cum-Civil Judge (Jr. Division), Ludhiana is hereby set aside and the matter is remitted to the Executing Court with a direction to appoint a private Architect as the Local Commissioner at the expense of both the parties, who shall inspect the house and submit a drawing/plan proposing the partition of the house in two equivalent shares. The entire exercise shall be undertaken by the Executing Court within a period of three months by no allowing any parties to resort to any kind of delaying tactics. Compliance report shall also be submitted.” Thus, the trial court in compliance with the aforesaid direction declined the application of the petitioner for putting the property to sale. It would also be significant to mention here that during the pendency of the revision petition Sneh Lata d/o Anand Sarup Talwar relinquished her right in ¼ share in the property in favour of Anil Talwar and the other co-sharer L. Midda son of Ram Chand relinquished his ¼ share in the suit property in favour of respondents No.6 and 7. This fact has not been disputed at all by the parties. Thus, the petitioner became owner of ½ share and Sheela Talwar, Miss Aditi Talwar and Master Aditya Talwar became owners to the extent of the other ½ share in the suit property measuring 33'-0' x 80'-7.5”. Arguments heard. Record perused. The Local Commissioner as appointed by the court appears to have exceeded his powers. He was never directed by the court to form his own opinion as to if the property is partible or not, but he was only directed to suggest the mode of partition in equal shares. The property having an area of 33'-0' x 80'-7.5” could be said to be certainly partible. I have also Civil Revision No. 3268 of 2010 -3- *** gone through the site plan appended to the petition regarding the property under partition. The same appears to be clearly partible and at the same time learned counsel for the respondent has stated that if any problem arises as to the measurement at the time of partition, then he was ready to receive some lesser share. This Court has already set aside the order dated 2.5.2006 regarding the sale of the property and had directed the trial court to appoint Local Commissioner, therefore, it was not expected from the Local Commissioner to again toe to the line of the petitioners. As such, the trial court was right in not accepting the report of the Local Commissioner. As regards movable property, no argument has been raised as to the mode of partition, therefore, findings returned by the court below stand affirmed. Resultantly, finding no merit in the petition the same is dismissed. April 08, 2011 (A.N. Jindal) deepak Judge