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Himachal Pradesh High Court · body

2015 DIGILAW 1607 (HP)

Sanjeev Aggarwal v. Roshan Lal Sood

2015-11-02

DHARAM CHAND CHAUDHARY

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JUDGMENT : DHARAM CHAND CHAUDHARY, J. 1. In the instant suit, the plaintiffs have claimed the following relief: “It is, therefore, prayed that suit of plaintiffs be decreed in favour of plaintiffs and against the defendant ordering and directing the partition of suit property by metes and bounds comprising of building bearing Municipal No.135, Lower Bazar, Shimla-171001 consisting of four storeys beside sub basement built on land measuring 75 square feet as per khasra Paimaish 1907 and presently described in latest revenue records in Missal Haquiat Bandobast Zadid for 2002-2003 by Khewat No.1 min, Khatauni No.257, Khasra No.1046 measuring 68-38 Sq. meters situate in Bazar Ward, Bara Shimla, Tehsil Shimla (Urban) and District Shimla by passing a preliminary decree at the first instance and thereafter a final decree be passed in favour of plaintiffs and against the defendant in accordance with laws. The costs of the suit be also awarded to the plaintiffs against the defendant. The share of each of plaintiff be separated by metes and bounds and physical vacant possession of each of the share which may be allotted to each of the plaintiffs be ordered to be delivered to the plaintiffs on final decree.” 2. Undisputedly, the plaintiffs and defendant are co-owners of the suit property bearing Municipal No.135, Lower Bazar, Shimla comprising four storeys, besides sub basement and land underneath measuring 75 square yards, bearing Khasra No.413 (old), Khasra Paimaish 1907 and at present Khewat No.1 min, Khatauni No.257, Khasra No.1046, measuring 68-38 square meters, as per latest Missal Haquiat Bandobast Jadid 2002-2003, situate in Bazar Ward, Bara Shimla, Tehsil Shimla (Urban). The previous owner of the suit property admittedly was one Shri Chiranji Lal Sood, who had obtained the same in partition of joint family properties of Nauranga and Khazana sons of Bilasa. After the death of Chiranji Lal and his wife Smt. Saraswati Devi, the suit property was inherited by their sons and daughters. It is from them, the plaintiffs and defendant have purchased the same through registered sale deeds. There is again no quarrel so as to plaintiffs are owners of the suit land to the extent of 2/5 share each, whereas the defendant 1/5 share. It is from them, the plaintiffs and defendant have purchased the same through registered sale deeds. There is again no quarrel so as to plaintiffs are owners of the suit land to the extent of 2/5 share each, whereas the defendant 1/5 share. As a matter of fact, the parties to the suit have purchased undivided shares from its previous owners in the suit property, hence the suit for the decree of partition thereof by metes and bounds firstly by preliminary decree and ultimately a final decree. 3. This Court on 21.9.2004 has passed a preliminary decree after considering the pleadings of the parties on both sides and the preliminary objections qua valuation of the suit for the purposes of court fee and jurisdiction raised by the defendant. The judgment dated 21.9.2004 reads as follows: “Keeping in view the facts as briefly noted hereinabove regarding each one of the parties being admittedly in possession of a part of the suit property, and it being not joint family property, I am satisfied that Section 7 (v) (b) as well as 7 (iv) (c) of the H.P. Court Fees Act, 1968 is inapplicable to the facts and circumstances of this case. What follows from this is that the suit is properly valued for the purposes of court fee and jurisdiction. This view is supported by the two decisions of this Court, referred to in the preceding paras of this order. Another point on behalf of the defendant urged was, regarding determination of status of the defendant over the suit premises. With a view to call for findings on this issue, learned senior counsel referred to the provisions of Order XX Rule 18 CPC. By referring to the provisions of Section 111 (d) of the Transfer of Property Act, he urged that there is no question of merger so far ownership and tenancy of his client in the demised premises is concerned. I am of the view that this question is not to be determined at this stage, and is thus left open. Ordered accordingly. No other point is urged. In view of the aforesaid discussion, OMP No.349 of 2003 stands dismissed, by holding that the suit is properly valued for purposes of court fee and jurisdiction. I am of the view that this question is not to be determined at this stage, and is thus left open. Ordered accordingly. No other point is urged. In view of the aforesaid discussion, OMP No.349 of 2003 stands dismissed, by holding that the suit is properly valued for purposes of court fee and jurisdiction. Keeping in view the fact that there is no dispute regarding shares of the parties in the suit property for partition by metes and bounds whereof present suit has been filed by the plaintiffs against the defendant, and shares of the parties being admittedly 2/5 and 2/5 each of plaintiffs and 1/5 of the defendant, a preliminary decree is passed holding so. A Local Commissioner needs to be appointed for working out the modalities of partition by metes and bounds as well as keeping in view the provisions of Partition Act. Parties are directed to suggest a mutually acceptable person to be appointed as Local Commission for suggesting the mode of partition of the suit property. For this purpose, the case is ordered to be listed on 15.10.2004.” 4. No appeal has been preferred against the preliminary decree passed by this Court on 21.9.2004. The same, therefore, has attained finality. Since as per the preliminary decree it was left open to the parties to suggest a mutually acceptable person to be appointed as Local Commissioner for suggesting mode of partition of the suit property, with their consent one Shri Triloki Nath Verma was appointed as Local Commissioner vide order dated 17.11.2004, which reads as follows: “Learned Counsel for the parties, on instructions received from their respective clients, submitted that Shri Triloki Nath Verma, Retired Assistant Engineer, resident of Near Hari Mandir, Rajgarh Road, Solan, may be appointed as Local Commissioner for partitioning the property by metes and bounds. In view of this submission made by the learned counsel for the parties, he is appointed as Local Commissioner for doing the needful. His tentative fee is fixed at Rs.10,000/-. This amount will be paid by the parties in the ratio of their shares in the suit property. The learned counsel for the parties further submitted that view a view to avoid delay a date may be fixed by the Court for appearance of their clients before the said Local Commissioner. Accordingly, parties are directed to appear before the said Local Commissioner at 11 a.m. on 5.12.2004. The learned counsel for the parties further submitted that view a view to avoid delay a date may be fixed by the Court for appearance of their clients before the said Local Commissioner. Accordingly, parties are directed to appear before the said Local Commissioner at 11 a.m. on 5.12.2004. Fifty per cent of the amount will be paid on that date to him against receipt. During the course of the proceedings before the Local Commissioner, parties will be free to ask the Local Commissioner to effect partition by metes and bounds as they may deem fit. Learned Counsel for the parties have further assured the Court that they will render all possible assistance to the Local Commissioner in expediting the submission of his report in this case. Registry is directed to send the following documents to the Local Commissioner: (a) a copy of this order; (b) copy of the preliminary decree alongwith the judgment on which it is based; (c) a copy of the complete set of pleadings filed by the parties in the suit and also copies of all the documents filed by both the parties in support of their respective pleadings. Suit may be listed before the Court after receipt of the report of the Local Commissioner. Urgent copy of this order may be made available to the learned counsel for the parties next week after the dispatch of the aforesaid documents forthwith to the Local Commissioner.” 5. Consequently, the Local Commissioner conducted the demarcation of the suit property on the spot on 5.12.2004 and 13.12.2004 in the presence of the parties on both sides. After the inspection of the spot and carrying out measurements of the suit property, the Local Commissioner submitted his report, which reads as follows: “The building bearing No.135 is situated in the Lower Bazar Main Market at Shimla. Four floors (other than the shop) namely sub basement floor, basement floor, ground floor and first floor have the only access from Mohalla known as Pursharthi Basti through a common staircase and passages. There is no connectively from Lower Bazar level to those floors as all the floors are below Lower Bazar level and are being used for residential purposes. Floor wise area is as under: FLOOR WISE SURFACE AREA: Sub-Basement Floor: 12” - 6” x 14” - 0” 175.00 Sq. ft. There is no connectively from Lower Bazar level to those floors as all the floors are below Lower Bazar level and are being used for residential purposes. Floor wise area is as under: FLOOR WISE SURFACE AREA: Sub-Basement Floor: 12” - 6” x 14” - 0” 175.00 Sq. ft. [14” - 0” x 5 - 6”/2] 38.00 ” [ (12” - 6” x 5” - 0”)/2] 31.25 ” [ (11” - 0” x 6 - 0”)/2] x [12” - 0” x 9 - 0”)/2] ” 8.5 x 10.5 89.25 ” Total 334.00 Sq ft. Basement Floor: 1. 13” - 3” x 24” - 9” 318.00 Sq. ft. 2. [ (13” - 3” x 4 - 5”) x 4 - 5)/2] 29.81 ” 3. [ (4” - 3” x 21” - 0”)/2] 44.62 ” 4. [ (4” - 3” x 2” - 6”)/2] 5.31 ” 5. [ (5” - 0” x 2” - 9”)/2] 4.37 ” Total 402.11 Sq. ft. Ground Floor: 1. 38” - 0” x 13” - 3” 503.50 Sq. ft. 2. 8” - 3” x 5” - 0” 41.25 ” 3. 5” - 0” x 5” - 0” 25.00 ” 4. [ (37” - 0” x 1” - 6”)/2] 27.75 ” 5. [ (3” - 6” x 7” - 6”)/2] 13.12 ” 6. [ (2” - 0” x 5” - 0”)/2] 5.00 ” Total 615.62 Sq. ft. First Floor: 1. 38” - 0” x 13” - 3” 503.50 Sq. ft. 2. 8” - 3” x 5” - 0” 41.25 ” 3. 5” - 0” x 5” - 0” 25.00 ” 4. [ (37” - 0” x 1” - 6”)/2] 27.75 ” 5. [ (3” - 6” x 7” - 6”)/2] 13.12 ” 6. [ (2” -0” x 5” - 0”)/2] 5.00 ” Total 615.62 Sq. ft. xxx xxx xxx Sub basement Floor 334.00 Sq. ft. Basement Floor 402.11 ” Ground Floor 615.62 ” First Floor 615.62 ” Total 1967.35 Sq. ft. This area is to be divided in three shares in the ratio 2:4:4 i.e. 393.47 Sq. ft: 786.94 Sq. ft: 786.94 Sq. ft. 20% share: Seems to be justified with basement floor having 402. 11 Sq. ft. Ist 40% share Ground Floor 615.62 Sq. ft. Half share as shown in Plan Mark “A” 167.00 ” Total 782.62 Sq. ft. IInd 40% share First Floor 615.62 Sq. ft. ft: 786.94 Sq. ft: 786.94 Sq. ft. 20% share: Seems to be justified with basement floor having 402. 11 Sq. ft. Ist 40% share Ground Floor 615.62 Sq. ft. Half share as shown in Plan Mark “A” 167.00 ” Total 782.62 Sq. ft. IInd 40% share First Floor 615.62 Sq. ft. Half share as shown in Plan Mark “B” 167.00 ” Total 782.62 Sq. ft. Difference in the quantities of floor area with respect to the ratio 40:40:20 is negligible and these quantities are very near to the shares of 40% : 40% : 20%. COMMERCIAL PORTION: Shop (Commercial Portion) consists of 13” - 4” long frontage along Lower Bazar and the length shown in the plans. Two proposals can be considered: First: The total frontage width can be divided in the ratio 20:40:40 along the total length of shop. The width of shares works out to 32”:64”:64” frontage as shown in plans. Second: In second consideration a common passage can be provided on one side of shops and on the other side with length of 8', 16', 16'. In this proposal share holder having first shop will be having more commercial benefits as compared to other share holders and which share holder should be kept in first shop seems to be a very complicated job. Hence the proposal does not seem to be justified. The total Covered area of shop is : 684.24 Sqft. This area is to be divided in three shares in the ratio of 2:4:4 i.e.: 136.80 Sqft : 273.69 Sqft : 273.69 Sqft. The detail of Area and partition is shown in the enclosed plans. (i) The area of divided share adjacent Shop No.136 (20%) comes to 136.66 Sqft. (ii) The area of the middle portion (40%) 273.94 Sqft. (iii) The area of the shop towards shop No.134 (40%) 273.64. (iv) All common passages and common staircase shall remain for common use for all the co-sharers. The partition in the shop Floor shall be of minimum division laid on the centre line of the division marked on the site as per the plans attached so as to utilize the maximum space.” 6. Annexed to the report is the site plan, in which the Local Commissioner has indicated the area in respective shares of the parties, residential portion and commercial portion. 7. Annexed to the report is the site plan, in which the Local Commissioner has indicated the area in respective shares of the parties, residential portion and commercial portion. 7. The parties were given opportunity to go through the report and file objections, if any. The plaintiffs did not file any objection to the report and rather accepted the mode of partition of the suit property suggested by the Local Commissioner, however, the defendant has objected to the authenticity and genuineness thereof on the grounds inter alia that the Local Commissioner has not taken into consideration the observations made by this Court in the preliminary decree and the documents particularly qua his tenancy over the shop, a part of the suit property handed over to him, have not been taken into consideration. According to him, he is in possession of lesser area than the one in his share and as such his possession could have not been disturbed while suggesting mode of partition. In case the commercial portion in the possession of the defendant is partitioned in the manner as suggested by the Local Commissioner, the same cannot be used and rather will render useless. The plaintiffs allegedly father and son in relation, are in possession of more commercial area as compared to their share. The report of the Local Commissioner is biased and has been prepared at the instance of the plaintiffs. 8. The plaintiffs in reply to the objections filed on behalf of the defendant, have denied the same being wrong and submitted that the Local Commissioner has taken into consideration all relevant facts and suggested the best possible mode of partitioning the suit property. The measurements carried out by the Local Commissioner are as per factual position on the spot. It is denied that the defendant-objector is entitled to retain his possession or that the same cannot be disturbed in the manner as suggested by the Local Commissioner. It is also submitted that the Local Commissioner has taken into consideration all relevant factors and ensured that none of the parties is put to disadvantageous position while partitioning the suit property. The objections allegedly have been raised merely to retain more area than the entitlement of the defendant-objector. It is denied that the commercial portion, i.e., shop in occupation of defendant-objector cannot be partitioned in the manner as suggested by the Local Commissioner. The objections allegedly have been raised merely to retain more area than the entitlement of the defendant-objector. It is denied that the commercial portion, i.e., shop in occupation of defendant-objector cannot be partitioned in the manner as suggested by the Local Commissioner. His claim qua tenancy rights over the commercial portion has also been denied being wrong. The authenticity and genuineness of the documents regarding the alleged tenancy of defendant-objector has also been disputed. 9. In rejoinder, the defendant-objector has denied the contentions to the contrary in the reply being wrong and reiterated the objections he raised to the report of the Local Commissioner. On such pleadings of the parties, following issues came to be framed on 23.8.2005: 1. Whether the objector has right of tenancy, if any over the premises in question as alleged, if so, its effect? OP Objector. 2. Whether the report of the Local Commissioner is liable to be set aside on the grounds as set out in the objection petition? OP Objector. 3. Relief. 10. It is seen that the onus to prove both issues is on the objector-defendant. In order to discharge the onus on him, he himself stepped into the witness box as DW-1 and produced in evidence the rent deed Ext.DW-1/A, rent receipts Exts.DW-1/B to DW-1/G, site plans mark “X” and “Y” and copies of assessment reports Exts.DW-1/H-1 to Ext.DW-1/H-9. DW-2 Vijay Kumar Sharma, Senior Draftsman, Municipal Corporation, Shimla has proved the original revised plans of the suit property Exts.DW-2/A and DW-2/B. DW-3 Om Parkash Sood has been examined to prove the agreement Ext.DW-1/A allegedly executed by Shri Mahinder Pal on behalf of Smt. Sarswati Devi, the previous owner qua the creation of tenancy of the commercial portion of the suit property, i.e., shop in favour of the defendant. DW-4 Yoginder Pal Sood is the real brother of the defendant, who has been examined to prove that initially right from 1952 “Paul Boot House” was being run in shop No.135 (suit property), by the partnership firm of his and his brother Roshan Lal (defendant). Later on the partnership firm ceases to function as such about 5-6 years prior to 1986 and thereafter defendant Roshan Lal was running business in shop No.135. 11. Later on the partnership firm ceases to function as such about 5-6 years prior to 1986 and thereafter defendant Roshan Lal was running business in shop No.135. 11. Learned Counsel representing the defendant-objector in his own statement has produced in evidence the copy of sale deed Ext.DX, copies of judgments Ext.DY, Ext.DZ and Ext.DZ/1, dated 29.10.1981, 7.11.1984 and 28.3.1981, respectively. 12. On the other hand, plaintiff No.1 Sanjeev Aggarwal has himself stepped into the witness box as PW-1 and has tendered in evidence the copy of the order passed by Rent Controller (2), Shimla Ext.PA. 13. On an application filed by the defendant, the Local Commissioner was summoned and cross-examined on his behalf. 14. On behalf of the defendant-objector, learned arguing Counsel has raised manifold submissions including that the proceedings conducted by the Local Commissioner on the spot behind the back of the defendant cannot be believed and the report submitted cannot be treated to be legal and valid nor on the basis thereof the suit property can be partitioned and also that the tenancy of the shop in possession of the defendant cannot be said to have been determined by way of merger on acquiring a portion, the share of Shri Jatinder Lal by way of sale by the defendant and as such the shop in his possession in the capacity of a tenant cannot be partitioned. 15. Learned Counsel has further argued that what is the share of the defendant in the commercial/non-commercial portion, the report is silent. Overwhelming evidence comprising oral as well as documentary shows that the defendant has been inducted as tenant over the commercial portion, i.e., shop by the previous owners and as such irrespective of he having acquired share of one of the co-owner by way of sale the shop being in his possession in the capacity of tenant cannot be partitioned. He allegedly has become tenant of the plaintiffs, who have purchased the remaining suit property from the previous owners. The tenancy of the shop in favour of the defendant, according to him, cannot be bifurcated. In the event of the shop is partitioned, the area will split up, which is said to be not legally permissible. 16. He allegedly has become tenant of the plaintiffs, who have purchased the remaining suit property from the previous owners. The tenancy of the shop in favour of the defendant, according to him, cannot be bifurcated. In the event of the shop is partitioned, the area will split up, which is said to be not legally permissible. 16. Learned Counsel representing the plaintiffs/ non-objector while repelling the arguments addressed on behalf of the defendant, has strenuously pointed out that no evidence is forth coming that the defendant or his brother were tenant under the owner Smt. Sarswati Devi Sood and when Jatinder Lal and Mohinder Paul were co-owners the shop in question could have not been rented out to defendant only by Mohinder Paul alone. The original rent deed remains with the landlord, however, the rent deed Ext.DW-1/A has been produced in evidence by the defendant. The genuineness and authenticity of the rent receipts and also the assessment reports Ext.DW-1/H-1 to DW-1/H-9 have also been disputed. Learned Counsel has vehemently argued that the defendant, who agreed for appointment of Shri Trioloki Nath Verma as Local Commissioner, participated in the proceedings conducted by the Local Commissioner on the spot and even shared the fees paid to the Local Commissioner now cannot turn around and dispute the authenticity and genuineness of the report filed by the Local Commissioner. It is also pointed out that the best possible arrangement has been suggested by the Local Commissioner to partition the suit property. The attention of this Court has also been drawn to the order Ext.PA in previous rent petition to show that the defendant was not held to be the tenant so far as the shop in question is concerned. The attention of this Court has also been invited to the judgment in the litigation instituted by Shri Yoginder Lal Sood (DW-4), the own brother of the defendant against him qua the tenancy in question. According to learned Counsel, if the area suggested to be allotted to each party, as per the mode of partition, is compared with the plan, the variance is minor, which otherwise is also bound to come. 17. It is also pointed out from the record that rights of lessee are superior whereas the tenancy rights inferior and on acquiring a share in the suit property by the defendant such inferior rights merge into superior rights. 17. It is also pointed out from the record that rights of lessee are superior whereas the tenancy rights inferior and on acquiring a share in the suit property by the defendant such inferior rights merge into superior rights. It is also not the case of the defendant that the measurement has not been carried out on the spot and rather that the measurement is wrong, however, no evidence has been produced to substantiate the same. It is also argued on behalf of the plaintiffs that in case they are found to be in surplus area, they are ready to surrender the same. It is further urged that the objection qua report is illegal and that the Local Commissioner was biased to the defendant should have not been raised by the defendant. 18. On analyzing the evidence available on record and also the rival submissions, my findings on the aforesaid issues are as under: ISSUE NO.1. 19. As a matter of fact, this is the pivotal issue in the lis. The defendant claims himself to be a tenant inducted by way of rent deed Ext.DW-1/A by the previous owners of shop No.135, the part of the suit property. This document has been executed by one Shri Mohinder Paul, one of the co-owners. The recitals of this document reveal that he has executed the same in the capacity of co-owner on behalf of other co-owners also, being authorized by them to do so. No document whereby said Shri Mohinder Paul was authorized by other co-owners, however, has seen the light of the day. If reverse of first page of this document is seen, the stamp papers worth Rs.10/- and Rs.5/- were purchased for reducing the same into writing. It is, however, only one stamp paper, i.e., Rs.10/- has been utilized for the purpose. Since this document is running in three pages, therefore, it is not understandable as to why the stamp paper worth Rs.5/- has not been used for reducing the same into writing. The number of two judicial papers used for reducing this document also varies, as first paper bears No.338070, whereas the second 338068. The missing of judicial paper bearing No.338069 also renders this document highly doubtful. 20. Above all, the executant Shri Mohinder Paul has not been examined nor is there any explanation qua his non-examination forth coming. The number of two judicial papers used for reducing this document also varies, as first paper bears No.338070, whereas the second 338068. The missing of judicial paper bearing No.338069 also renders this document highly doubtful. 20. Above all, the executant Shri Mohinder Paul has not been examined nor is there any explanation qua his non-examination forth coming. No doubt, DW-3 Om Parkash Sood allegedly witnessed the execution of this document and admits his signatures thereon, however, if his testimony in cross-examination is seen, the same reveals that Mohinder Paul is only owner of the shop is not true because the rent deed itself reveals that besides said Shri Mohinder Paul others were also the co-owners of the same. Who were other co-owners, this witness has no knowledge in this regard. Smt. Sarswati Devi Sood, who admittedly, was co-owner of the shop in question, was also not known to him. On the other hand, defendant being son-in-law of his parental uncle is closely related. When he did not know that the stamp papers were purchased before he came there or not, how he could have stated that the rent deed was reduced into writing in his presence. Not only this, but no exchange of money had taken place between executant Shri Mohinder Paul and defendant Roshan Lal, whereas the rent deed reveals that a sum of Rs.4,922/- towards the rent and municipal taxes was paid by the defendant to said Shri Mohinder Paul on that day. Not only this, but as per the version of DW-1, on the day of execution of Ext.DW-1/A (rent deed), business was being run in the shop in question by defendant and his brother Yoginder Paul in the name and style “Paul Boot House”, whereas as per version of Yoginder Paul, the partnership firm had ceased to exist 5-6 years prior to 1986. As per his statement, he is not the adjoining shopkeeper and rather there exists 60-70 shops between his shop and the disputed shop, i.e., “Paul Boot House”. When there were a large number of shops in both sides of the disputed shop, it is not known as to why the adjoining shopkeepers were not called for to witness this document. According to him, it is after execution of Ext.DW-1/A defendant started running business in the disputed shop under the name and style “Akash Boot House”. When there were a large number of shops in both sides of the disputed shop, it is not known as to why the adjoining shopkeepers were not called for to witness this document. According to him, it is after execution of Ext.DW-1/A defendant started running business in the disputed shop under the name and style “Akash Boot House”. Therefore, in the totality of the circumstances and close scrutiny of the statement made by DW-3 it would not be improper to conclude that he being in close relation of the defendant has deposed falsely and also that the execution of Ext.DW-1/A is not at all supported from his testimony. 21. If coming to the statement of DW-4 Yoginder Paul, who is none else but real brother of the defendant, he admits in his cross-examination that in the civil suit he filed in the year 1993 he had claimed himself to be the sole tenant in respect of the disputed shop and his brother Roshan Lal was defendant in that suit. He has admitted his signatures on the plaint of such suit bearing No.12-S/1998. Therefore, when DW-4 has disputed his brother, Roshan lal defendant herein to be inducted as tenant in the shop in dispute, his testimony that he was inducted as tenant by Mohinder Paul in the year 1986 cannot be believed to be true by any stretch of imagination. When this witness has blown hot and cold in the same breath, it is not safe to place reliance on his testimony. Otherwise also, he being the real brother of defendant possibility of he having deposed falsely to help him cannot be ruled out. If the statements of DW-3 and DW-4 are excluded from the evidence and the rent deed Ext.DW-1/A is also held legally inadmissible, there hardly remains any legal and acceptable evidence to show that the defendant was inducted as tenant in the disputed shop which form the part of the suit property owned by the previous owners. 22. The own testimony of the defendant as DW-1 cannot be relied upon to arrive at a conclusion that he was inducted as tenant by the owners in accordance with law. The rent receipts Exts.DW-1/B to DW-1/D are on the letter-head of Akash Boot House, the proprietor whereof is defendant and allegedly signed by Smt. Sarswati Devi Sood, the owner. 22. The own testimony of the defendant as DW-1 cannot be relied upon to arrive at a conclusion that he was inducted as tenant by the owners in accordance with law. The rent receipts Exts.DW-1/B to DW-1/D are on the letter-head of Akash Boot House, the proprietor whereof is defendant and allegedly signed by Smt. Sarswati Devi Sood, the owner. As noticed hereinabove, said Smt. Sarswati Devi has not executed the rent deed Ext.DW-1/A in favour of the defendant. Whether these receipts have been issued by her, again there is no iota of evidence on record. Above all, these receipts are on the own letter-head of the defendant, therefore, the possibility of having been forged and fabricated cannot be ruled out. The rent receipt Ext.DW-1/E is on the plain paper whereby it has been shown that the landlord has received the rent of the disputed shop. The rent receipts Exts.DW-1/F and DW- 1/G are on the letter-head of Mohinder Paul. There is no iota of evidence that these receipts have been issued by Mohinder Paul alone and not forged or fabricated documents, therefore, the same cannot be relied upon. 23. Reliance has also been placed on the tax assessment reports Ext.DW-1/H-1 to DW-1/H-9. No doubt, in these reports the defendant has been shown in possession of one room in the building 135, Lower Bazar, Shimla on payment of rent. However, when it is not proved on record that he has been inducted as tenant in accordance with law and also that the tax assessment reports are prepared by the Municipal Corporation, Shimla in routine, it cannot be said that he is in possession of the shop in question in the capacity of a tenant. 24. Now if coming to the judgment/order Ext.PA produced in evidence by the plaintiffs, learned Rent Controller while deciding the rent petition filed by the previous owner Jatinder Paul Mohinder Paul against the defendant and his brother, it has been held that defendant Roshan Lal was never inducted as tenant over the shop in question and it is rather his brother Yoginder Paul (wrongly mentioned as Yoginder Lal) was tenant under the owners. Therefore, it lies ill in the mouth of the defendant to claim that initially he being partner of “Paul Boot House” was running his business in the capacity of tenant in the shop in question and subsequently was inducted as tenant vide rent deed Ext.DW-1/A. Otherwise also, had he been already inducted as a tenant where was the occasion for him to have executed the fresh rent deed Ext.DW-1/A. The defendant, therefore, was not inducted as tenant in the disputed shop nor could he prove the payment of rent to the owners. Of course, he is in possession of the shop in question which form the part of the suit property, but he failed to make out a case that the shop in question cannot be partitioned and also that he being the tenant under the plaintiffs who acquired share in the suit property subsequently by way of sale, is tenant under them and that they are entitled only to the payment of rent as agreed upon. 25. On behalf of the defendant-objector reliance has been placed on Puran Chand (deceased) through LRs and others v. Kirpal Singh (deceased) and others, (2001) 2 SCC 433 , Nalakath Sainuddin v. Koorikadan Sulaiman, AIR 2002, SC 2562, T. Lakshmipathi and others v. P. Nithyananda Reddy and others, (2003) 5 SCC 150 , India Umbrella Manufacturing Co. and others v. Bhagabandei Agarwalla (deceased) by LRs Savitri Agarwalla (Smt) and others, (2004) 3 SCC 178 , Pramod Kumar Jaiswal and others v. Bibi Husn Bano and others, (2005) 5 SCC 492 , Savitri Devi v. Santa and others, 1982 Sim.L.C. 135, Shafiq Ahmad v. Smt. Sayeedan, AIR 1984 Allahabad 140, Ishwar Dayal and others v. Ram Deo, 1985 (1) R.C.J. 619, Balak Ram v. Kedar Nath (deceased) through his L.Rs. Joginder Paul and others, 1995 (1) Sim.L.C. 191 and Hameeda Begum and another v. Champa Bai Jain and others, 2009 (2) RLR 518, to urge that in view of acquisition of partial proprietary rights in the suit property by the defendant by way of purchase of share of one of the previous owners the tenancy cannot be said to have determined because the proprietary rights qua the remaining suit property are with the plaintiffs and as such for want of complete transfer of the suit property in favour of the defendant the principle of merger is not applicable, i.e., the interest of the landlord in its entirety not vested and merged into the interest of the defendant-tenant in its entirety. 26. There is no quarrel to the law laid down in the judgments cited supra, however, when the defendant-objector has miserably failed to prove himself to be the tenant inducted in the disputed shop in accordance with law with all humility in my command, the ratio of the law laid down in these judgments is not at all attracted in the present case. Otherwise also, as per the law laid down in these judicial pronouncements, nothing is there that the co-sharer cannot seek partition of that portion of the suit property, which has been rented out. Therefore, the shop in dispute, which is part of the suit property, can be partitioned; however, the defendant can only be ousted therefrom under due process of law. Therefore, this issue is accordingly answered against the defendant-objector. ISSUE NO.2. 27. Though objections have been raised to the report of the Local Commissioner that the same is biased and the suit property has not been measured in the presence of the defendant nor the mode of partition suggested legally sustainable, however, without producing any evidence which can be termed as cogent and reliable. 28. On an application filed by the defendant, Local Commissioner Shri Triloki Nath Verma was summoned for cross-examination. He has been cross-examined by the defendant. True it is that as per the Local Commissioner, Shri Akash Sood son of the defendant remained present during the course of proceedings conducted on the spot on 5.12.2004, however, as per his testimony on the next date, i.e., 13.12.2004, both parties were present, meaning thereby that defendant was also present on that day. True it is that as per the Local Commissioner, Shri Akash Sood son of the defendant remained present during the course of proceedings conducted on the spot on 5.12.2004, however, as per his testimony on the next date, i.e., 13.12.2004, both parties were present, meaning thereby that defendant was also present on that day. An effort has been made to dispute the authenticity and correctness of the report of the Local Commissioner by cross-examining him that he has associated one Mr. Bhambra, Architect and that it is he who has drawn the entire proceedings, however, unsuccessfully as the defendant has failed to elucidate any material in this regard during the cross-examination of the Local Commissioner. On the other hand, it has come in his statement that he got signed the proceedings conducted on 5.12.2004 and 13.12.2004 from the parties on both sides and according to him on behalf of the defendant, the proceedings were signed by his son Shri Akash Sood. It is thus seen that by cross-examining the Local Commissioner the defendant has failed to elucidate something material lending support to the objections raised against the report of the Local Commissioner. Even it is believed to be true that he was not present on 5.12.2004 and 13.12.2004, it is his son Akash Sood who remained present on both these dates and has signed the proceedings without any protest. Otherwise also, as per own testimony of the defendant, his son Akash Sood was assisting him during the course of the proceedings in the suit. It has also come in evidence that the defendant is a disabled man. 29. Above all, the Local Commissioner was appointed with the consent of the parties on both sides. The fee was also paid to him by the parties on both sides as directed by this Court. Not only this, but the defendant-objector never objected to the proceedings conducted by the Local Commissioner on the spot, as no evidence to this effect has been brought on record. He has raised objections that the measurement carried out on the spot is wrong, however, how it is wrong, he has failed to produce any evidence. Not only this, but the defendant-objector never objected to the proceedings conducted by the Local Commissioner on the spot, as no evidence to this effect has been brought on record. He has raised objections that the measurement carried out on the spot is wrong, however, how it is wrong, he has failed to produce any evidence. Since the plaintiffs are entitled to the extent of their shares in the suit property including the disputed shop and as the defendant on partition will get share in the shop in question to the extent of his ownership and as he is running business in the shop in question, therefore, with a view to grab the shop he has raised frivolous objections to the report of the Local Commissioner. The Local Commissioner, a technical expert has conducted the inspection of the spot and carried out the measurement and thereafter he has suggested the mode of partition of the commercial and non-commercial portions of the suit property in accordance with respective shares of the parties to the suit. I accept the report of the Local Commissioner and reject the objections thereto raised by the defendant. This issue, therefore, is also answered against the defendant. RELIEF. 30. In view of my findings on both issues hereinabove, the final decree is passed in favour of the plaintiffs and it is ordered that the suit property be partitioned amongst the plaintiffs and the defendant as per the mode of partition suggested by the Local Commissioner. The report of the Local Commissioner be made part of the decree. No order as to costs. Decree sheet be prepared accordingly.