THE HON’BLE SRI JUSTICE K.C.BHANU APPLICATION NO.861 OF 2010 IN C.S.NO.14 OF 1958 DATED:01-12- 2010. Between M.A.Bari and another … Applicants/Receivers-cum Commissioners And 1.Nawab Rahimuddin Khan and others …Respondents-Defendants THE HON’BLE SRI JUSTICE K.C.BHANU APPLICATION NO.861 OF 2010 IN C.S.NO.14 OF 1958 ORDER: This application is filed under Order XL Rule 1 CPC to approve the report with regard to the village of Malkaram, which is item No.1 of Schedule IV A annexed to the preliminary decree, dated 28-06-1963 by calling for objections, if any, from the un-sold/sold share holder and after adjudicating the same, so as to enable the parties/assignees/purchasers to get the final decree for their share so allotted to them. 2. Defendants 195 to 205, who are the legal representatives of defendant No.42 filed objection stating that they have got right, title and interest and that the Commissioner has no jurisdiction to decide the title, that the preliminary decree has become final, that undivided share cannot be transferred, that there is no order from the Court so as to use the phrase ‘sold sharers’ and hence, they pray the Court not to accept the report in transferring the share of D42. 3. On the other hand, Mr.M.A.Bari, learned Advocate Commissioner contended that there is nothing new using the terminology ‘sold sharers’ because in C.S.14 of 1958 when the shares of some of the defendants have been sold, that has been recognized by this Court and therefore, basing on the register of assignment deeds transferring the right of a share by virtue of preliminary decree taken into consideration, that the father of defendants 195 to 205 already sold the property by registered assignment deed, that they cannot have any title, that there is nothing wrong in accepting the report and hence, he prays to accept the Commissioner’s report. 4. The preliminary decree passed by this Court in C.S.No.14 of 1958 has become final. There cannot be any dispute that by virtue of the preliminary decree, the rights of the parties have to be determined. To what extent the defendants are entitled for the share of the property is in dispute. They do not have any share of property. As in the final decree, the division of properties in pursuance of the shares granted by the preliminary decree has to be allotted. So for that purpose a receiver was appointed for dividing the property by metes and bounds. The property can be allotted to the respective share holders in pursuance of the preliminary decree. 5. Learned counsel appearing for the objector placed reliance on a decision reported in M.GOVINDARAJULU V SMT.BHUSHANAMMA [1] , wherein it was held thus: “As rightly pointed out by the learned counsel appearing for the respondent/plaintiff, the Commissioner cannot decide the rights of the parties, except noting the physical features for which purpose he was appointed.” In that case, the suit was filed for grant of perpetual injunction. Therefore, Commissioner was appointed to note down the physical features. In a suit for permanent injunction as rightly held by this Court, the rights of the parties cannot be determined. Therefore, the above decision has no application to the present facts of the case. 6. He further relied on a decision reported in T.SARASWATHI PRASAD SINGH V G.V.KALAVATHY AND OTHERS [2], wherein it was held thus: “The learned single Judge has not gone into that question and decided the said objection. When there are rival claims, the Court has t decide their claims after recording the evidence. Under Order XXI Rule 101 CPC, all questions relating to right title or interest in the property arising between the parties to a proceeding have to be decided by the Court. The learned single Judge has not gone into that asset and decided the right and title to the disputed property. Without deciding the right and title to the disputed property, the delivery of possession ought not to have been ordered. For the above said reasons, we are of the opinion that the decree in question is not executable insofar as the E.P. schedule property is concerned.” There is no dispute about the law laid down because when the preliminary decree is passed, it cannot be executable unless the property is divided by metes and bounds. That order appears to have been passed basing on the preliminary decree. An Execution petition said to have been filed in the above decision. Hence, the above decision is not relevant for the purpose of this case. 7. He also relied on a decision reported in RAM PAT AND OTHERS V STAE OF HARYANA [3], wherein it was held thus: “..It is also not in dispute that the appellants, being purchasers of undivided share in a joint family property, are not entitled to possession of the land that they have purchased. They have in law merely acquired a right to sue for partition.” Even in the above decision, it was held that the appellants, being purchasers of undivided share in a joint family, are not entitled to possession. There is no dispute about the law because in the undivided share, nobody has any right for a particular portion of the share unless that property is divided by metes and bounds. Hence, the above decision has no application to the present facts of the case. 8. As a matter of fact when defendant No.42 assigned his rights in pursuance of the preliminary decree, he was deleted from the suit as arrayed in the cause title. The rights of defendant No.42 in pursuance of the preliminary decree were transferred by way of registered assignment deed in favour of D157 to 206 and that the same was recognized by this Court in Application No.146 of 1964, dated 27-08-1964. Such is the case, the objector i.e., defendants 195 to 205 have no right to object in accepting the receiver’s report in view of the fact that they have no right, title and interest because their father has already transferred by registered instrument in favour of D157 to 206. Therefore, Commissioner report has to be accepted. No other objections have been received and it is not shown that the Commissioner report is not in accordance with the shares allotted in the preliminary decree. As Commissioner’s report is completely in accordance with the preliminary decree passed by this Court, the report can be accepted. 9. Accordingly, the application is ordered. The Receiver is entitled to remuneration as per the order, dated 01-02-2008 in Application No.692 of 2005. No costs. -------------------- K.C.BHANU, J DATED:01-12- 2010 Hsd Note: Issue CC in 2 days. [1] 2000 (2) ALT 71 [2] 2002 (5) ALD 248 (DB) [3] (2009) 7 SCC 614