1 CRA-63-09.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi CIVIL REVISION APPLICATION NO. 63 OF 2009 Bashir Abdul Rehman Batte .. Applicant (Judgment Debtor) Vs. Mohamad Abdul Rehman Batte &Ors. Respondents (Orig.Judgment Debtor) Mr. P.R.Arjunwadkar, a/w Ms. P.V.Badadre, Advocates, for the applicant. Mr. P.B. Shah, Advocate, for the respondent No.1. Mr. Pratap Bhosale, Advocate, for the respondent Nos. 3 to 7. CORAM: J.H.BHATIA,J. DATE : 15th September, 2010. P.C. 1. Heard the learned Counsel for the parties. 2. The applicant and respondent Nos. 1 and 2 are brothers interse. Respondent No.1 had filed the suit for partition and separate possession against the present applicant and respondent Nos. 2 to 8. The trial Court held that he had 22.25% share in he property. The two houses bearing Nos. 135 and 136 were the subject matter of the suit. The respondent No.1 filed Regular Darkhast No.129 of 1995 for executing the decree for effecting partition and giving him possession of his share. As none of the parties could be put in exclusive possession of any 2 CRA-63-09.sxw house according to his share, it became necessary to have valuation of the property. Deputy Engineer, Zilla Parishad was appointed as the Court Commissioner for making valuation of the property. The value of the house No. 135 was assessed at Rs.2,94,984/-, while the value of the house No.136 was found to be Rs.1,02,945/-. The total value of both these properties was Rs.3,97,929/-. The Executing Court noted that the present applicant and respondent No.2 were living in the House No.135. As per the share of respondent No.1 - decree holder, his share could be worth Rs.88,539.28. The value of the house No.136, being Rs. 1,02,945/-, was more than the share of decree holder. The difference was Rs. 13,310.75 ps. The house could not be divided. The Executing Court noted that the judgment debtor i.e. the present applicant had offered to pay only Rs.66,000/- to the decree holder so that he could retain the house No.136 also. However, this was much less than what the decree holder was entitled to as per the valuation made by the Deputy Engineer, Zilla Parishad. The decree holder i.e. respondent No.1 offered to take the house No.136 as per the valuation made by the Deputy Engineer, and pay the difference of Rs.14,405.72. In view of the fact that bigger house bearing No.135 was already in possession of the present applicant and respondent No.2 and also that the respondent No.1 was willing to pay the value of the house No.136 as per valuation made by the Deputy Engineer, the Executing Court accepted the report of the Court Commissioner and directed that house No. 3 CRA-63-09.sxw 136 be put in possession of the respondent No.1 - decree holder on his depositing the amount of Rs.14,405/-. The said order is challenged in the present Revision Application. 3. During the arguments, the learned Counsel for the applicant contended that the Executing Court had wrongly observed that the defendant Nos. 1 and 2 were living in House No.135. He contended that only defendant No.2 was living in House No.135 and therefore, he requires House No.136. On perusal of the revision application, it appears that this contention in the oral argument is contrary to the case of the applicant. In ground (e), he had stated "The Ld. Judge has failed to consider the fact that Respondent Nos. 2 to 8 are also staying with the Applicant and hence applicant's need to possess the suit properties was more than Respondent No.1." After the arguments by the learned Counsel for the applicant, the learned Counsel for the respondent No.1 produced the copy of voters' list prepared for the election of Legislative Assembly for the year 2009 and it clearly shows that Bashir Abdul Rehman and Rashid Abdul Rehman, the applicant and respondent No.2 are residing in Housed No.135. There was no reply from the Counsel for the applicant. The Executing Court has considered the requirements of both the parties, the value of the share of the parties and the fact that the decree-holder was willing to pay the price as per valuation made by the 4 CRA-63-09.sxw Court Commissioner, while the present applicant had offered much less than its true value. 4. In these circumstances, I find no illegality or irregularity in the impugned order. Therefore, the Revision Application stands dismissed. 5. The Executing Court shall expedite the execution proceedings and put the decree-holder in possession of the House No.136 as early as possible. (J.H.BHATIA,J.)