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2002 DIGILAW 1112 (PNJ)

Chander Bhan v. Parmeshwari Devi

2002-10-23

AMAR DUTT

body2002
Judgment Amar Dutt, J. 1. Nanak Chand son of Udho Ram had filed a suit for possession by way of partition against one Ladha Ram and Smt. Ved Piari. This suit was decreed on 28.3.1987 by the Subordinate Judge, IIIrd Class, Karrial. On the basis of this preliminary decree, Nanak Chand had moved an application for final decree. For doing the needful, initially one Shri Bhagat Singh had been appointed as a Local Commissioner, who had to be removed on account of some dispute which has arisen at the spot during the inspection. Shri Zile Singh, Advocate was then appointed as the Local Commissioner to go to the spot and divide the property in question in three equal parts after calculating the total area as per site plan Mark X. Some objections were raised against the report of Shri Zile Singh, which necessitated the appointment of one Shri Harish Gupta as Local Commissioner on 18.10.1993 to demarcate and divide the property as per order dated 25.4.1991. 2. In compliance of this order, Shri Harish Gupta Submitted his report on 12.12.1993 against which objections were filed by Chander Bhan. According to the objector, report was illegal as Local Commissioner had committed a mistake in demarcating the suit property because he had included the property owned by the objector in the suit property, in spite of the fact that said property was purchased by the objector from the Rehabilitation authorities vide sale deed dated 18.10.1985. This claim was contested on various grounds. The detail whereof need not be adverted to by me at this stage. 3. After taking into consideration the rival claims, the trial Court dismissed the objection petition on merits on 9.3.1995 and while doing so, it observed as under:- ".....I have come to the conclusion that the present objection merits dismissal. I order accordingly and the same stands dismissed. However, local commissioner Sh. Harish Gupta has reported that due to the scattered construction over the suit property, it is impossible to demarcate and divide in three equal parts and to put each party in possession over his 1/3rd share of the same. He also recorded that either the existing construction be demolished or the suitable compensation in respect of the existing construction be given to the parties concerned as per their shares after getting the same evaluated from some competent authority. He also recorded that either the existing construction be demolished or the suitable compensation in respect of the existing construction be given to the parties concerned as per their shares after getting the same evaluated from some competent authority. Learned counsel for the parties requests for an adjournment for opting for either of the modes of the partition after consulting their clients. Therefore, for consideration on the point of mode of partition as regards the existing construction over the suit property, the case to come up on 1.4.1995." 4. Instead of waiting for final disposal of the objections on 1.4.1995, the petitioner has approached this Court by way of present revision petition to assail the manner in which the objections filed by the petitioner under Order XXVI Rule 14(2) of the Code of Civil Procedure (in short "the Code") have been disposed of. 5. Before the learned counsel for the petitioner could address arguments on merits for the revision, a preliminary objection was raised with regard to the maintainability of the revision petition as according to the respondents impugned order passed does not finally dispose of the lis between the parties as ultimately final decree had to be passed on the basis of the report of the Local Commissioner which has yet not been done. According to the respondents, Order XXVI Rule 14(2) of the Code by itself would not be revisable as same would not fall within the meaning of Section 115 of the Code of Civil Procedure. 6. I have heard the learned counsel for the parties. It is not disputed before me that in the present case an application had been moved for execution of a preliminary decree for partition passed by the Subordinate Judge, IIIrd Class, Karnal, on 28.3.1987. To effect the partition, the officer dealing with the case had, from time to time, been appointing Local Commissioner to go to the spot and suggest the mode of partition. Shri Harish Gupta, was appointed as a Local Commissioner on 18.10.1993 and after more than two years of the filing of the application for appointment of a Local Commissioner, he had submitted his report. Shri Harish Gupta, was appointed as a Local Commissioner on 18.10.1993 and after more than two years of the filing of the application for appointment of a Local Commissioner, he had submitted his report. After hearing the counsel for the parties, the objections had been dismissed but since the report has suggested two modes of partition, the case had been adjourned to 1.4.1995 for evaluating the response of the parties regarding the mode of partition, which would be acceptable to them. This order, which till that date was inconclusive inasmuch the Court had not chosen the mode of partition, which it would like to follow, was sought to be challenged in revision. Such a challenge to my mind would be possible only after the passing of the final decree on the basis of the mode of partition agreed to by the parties or chosen by the Court, So the revision would not be maintainable because no final decision, which would fall within the definition of case decided, had been passed by the Court to enable to petitioner to invoke the provisions of Section 115 of the Code of Civil Procedure to challenge the same. Since no final decision, which would finally dispose of the suit had been taken by the executing Court while disposing of the objection, this Court would not be able to grant any relief to the petitioner in view of the Section 115 of the Code as amended by the Code of Civil Procedure (Amendment) Act, 1999. 7. For the reasons recorded above, this revision fails and the same is dismissed.