Sat Pal ( 1 ) THIS is an application filed on behalf of the plaintiff under Order 12 Rule 6 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as the Code ) and in this application it has been prayed that a decree on admission under Order 12 Rule 6 of the Code be passed in favour of the plaintiff and against the defendants. ( 2 ) BRIEFLY stated, the facts of the case are that the plaintiff and defendants 1 to 5 are brothers being sons of late Shri Basheshar Nath Malhotra. The present suit has been filed by the plaintiff for partition with regard to the property bearing No. E-48, Kirti Nagar, New Delhi. It is stated that the plaintiff alongwith his deceased father purchased and acquired a plot of land measuring 425 square yards bearing No. E-48, Kirti Nagar, New Delhi vide registered sale deed dated 4th July, 1962 and thereafter the plaintiff and late Shri Basheshar Nath Malhotra constructed a building of two and a half storey over the aforesaid plot jointly and they were joint owners of the property in equal proportion. ( 3 ) IT has been stated in para 5 of the plaint that right from the beginning the plaintiff and the deceased father of the parties had been enjoying the said property in equal proportion as joint owners and they were also recorded as joint owners of the said property. In para 7 of the plaint it has further been stated that as per the Will left by late Shri Basheshar Nath Malhotra, half portion of the said property, which was in his name, devolved upon defendants 1 to 5 in equal proportion. The aforesaid facts have not ben controverted in the corresponding paras of the written statement. ( 4 ) MR. Malhotra, the learned counsel for the plaintiff, drew my attention to the deed of settlement which was signed between the parties on 28th November, 1989 and in this settlement it has been stated that the suit property consists of half portion belonging to the first party (the plaintiff) and the other portion belonging to the second to sixth parties (defendants 1 to 5 ). In para 4 of the settlement it has further been stated that the first party is the owner of the half portion of the entire building and since there is additional construction in the portion of the parties of second to sixth part, the first party has agreed that instead of receiving fifty percent share in the sale proceeds, he will receive forty five per cent share in the sale proceeds in full and final satisfaction of his claim in the said property. Mr. Malhotra, therefore, contended that in view of the averments made in paras 3,5 and 7 of the plaint and in the corresponding paras of the written statement a preliminary decree be passed holding that the plaintiff is the owner of half portion of the said property and defendants 1 to 5 are jointly owners of the other half portion of the property and a local commissioner be appointed to suggest the mode of partition of the suit property by metes and bounds. ( 5 ) MR. Munjal, the learned counsel appearing on behalf of the defendants, submitted that the written statement filed on behalf of the defendants be read as a whole. He also drew my attention to para 4 of the family settlement wherein it has been stated that the plaintiff had agreed that instead of fifty per cent share in the sale proceeds of the suit property, he would receive forty five per cent share in the sale proceeds in view of the additional construction in the portion which is in occupation of defendants 1 to 5 and submitted that there was no unqualified admission of the defendants. ( 6 ) I have given my thoughtful consideration to the submissions made by the learned counsel for the parties and have also perused the record. From paras 3, 5 and 7 of the plaint and corresponding paras of the written statement, it is clear that the plaintiff is the owner of the half portion of the suit property and defendants 1 to 5 are the joint owners of the other half portion of the said property. It is true that the plaintiff had agreed to accept forty five per cent of the sale proceeds in full and final satisfaction of his claim in respect of the portion of the suit property belonging to him. It is true that the plaintiff had agreed to accept forty five per cent of the sale proceeds in full and final satisfaction of his claim in respect of the portion of the suit property belonging to him. But he had agreed to this on the ground that there was additional construction in the portion of the property which was in occupation of defendants 1 to 5. Since the parties failed to sell the property, the question of accepting forty five per cent share in the sale proceeds of the suit property by the plaintiff does not arise. ( 7 ) IN view of the foregoing facts I hold that the plaintiff is the owner of half share of the property bearing No. E-48, Kirti Nagar, New Delhi and defendants 1 to 5 are the joint owners of the other half share of the said property. Let a preliminary decree be drawn in the aforesaid terms. ( 8 ) MEANWHILE, I appoint Mr. Y. D. Nagar, advocate, who is also a qualified engineer, as a local commissioner to suggest the mode of partition of the suit property by metes and bounds. The local commissioner is directed to rely the plan which was got prepared by Mrs. Avnish Ahlawat, advocate, who was earlier appointed as local commissioner to ascertain as to who was in physical possession of the suit property. The fee of the local commissioner is fixed at Rs. 4000. 00 which shall be shared equally by the plaintiff (half share) and defendants 1 to 5 (half share ). The local commissioner is directed to submit his report within two months. With this order the application stands disposed of. Suit No. 4333/91 ( 9 ) LIST the suit for further proceedings on 12th September, 1994.