Decided on April 21,1950

Hari Ram Mur Lal Appellant
Niranjan Lal And Ors. Respondents


Kesho Ram Passey, J. - (1.) APPEAL No. 108 of 2005 by Hari Ram and No. 125 of 2005 by Banwari Lal and Niranjan Lal were brought from a final decree of the District Judge, Narnaul, dated 19 -1 -2005 in a cause for partition. The suit is of no recent date but was instituted as far back as the year 1987 Bk. by Hari Ram and Rameshwar Dial, sons of L. Murari Lal who claimed to be joint owners in the property in question comprising of a haveli and a nauhra in Narnaul and a house in Murari Pur. Niranjan Lal and Banwari Lal accepted the partition to be fair and did not wish to prosecute their appeal which was, therefore dismissed on 19 -4 -1950. Out of the two Plaintiffs only Hari Ram has appealed and as his brother Rameshwar Dial had not joined him, he has been arrayed as a formal Respondent.
(2.) THE Appellant and the Respondent are the representatives of a common ancestor who had acquired and built the property which has been sought to be partitioned. The suit was dismissed by the Naib Nazim, Narnaul on 6 -2 -1998 but a preliminary decree was passed by the District Judge on 29 -9 -1998 which was finally maintained by the Judicial Committee as is apparent from its judgment dated 17th November 1944/l3th Maghar 2001. Mr. Ram Saran Chand Mittal, a prominent lawyer of Narnaul, was appointed a local Commissioner to effect partition by metes and bounds, and he submitted his report on 14 -4 -2002 which in the light of the objections of the partita was remitted to him for further consideration. He has now spent time and energy to find a suitable and workable solution of the enigmas presented by the parties in the form of objections and counter -proposals. The warned District Judge after inspecting the locality and examining carefully the allotment proposals by the Commissioner and thus practically holding an investigation over again himself, has except for a minor variation, adopted the report of Mr. Mittal, as the basis of his judgment and has remarked that the proposals of the Commissioner appear to me to be fair to all parties and a better proposal is difficult to conceive . The Commissioner has drawn up elaborate maps and made a careful survey of the properties, examined evidence and ransacked his brain to solve the problem before him rendered more difficult and complicated by the intransigent conduct of the parties. Unfortunately, the Appellant and the Respondents acutely litigation, minded as they are, have not been able to come to terms, and it is, therefore, that they have been litigating in respect of the suit property for the last 20 years. The possibilities of a mutual compromise were explored by the Commissioner though unsuccessfully. The proposals submitted by the parties were duly scanned and his report takes into consideration and tries to give effect to such of them as could fit in an equitable partition. Efforts have been made to allow the different claimants to continue in possession of the portions that they held before the partition so far as it was possible and regard has not been lost of their requirements and rights. The peculiar circumstances and structure of the Haveli renders it impossible to maintain equality in allotment in all respects, but the Commissioner has devoted labour and thought to make a fair division and has doubtlessly succeeded to a great extent which is evidenced by the fact that two out of three co -proprietors have now nothing to say either against the manner in which the allotment has been made or the portions allotted to each of the co -owners. The Commissioner has also taken the present and future joint needs of the claimants before him and in making adjustments he did not lose sight of the fact that even distribution of the property so far as the structure of the Haveli permitted was to be made. The improvements effected by individual co -sharers in the specific portions in their possession before partition have been also accounted for. The counsel are agreed that Mr. Mittal is a person of undisputed integrity and he has executed his task without fear or favour. No allegation of any misconduct, bias or partiality has been levelled at him nor has it been alleged that in separating the shares of the claimants he was actuated by any motive other than of bringing peace and conciliation to the parties and to give each of them his due share. The Appellant contends that some rooms out of those in his occupation prior to division have been allotted to the Respondents, whereas on grounds of convenience the possession of every co -owner should have been maintained entirely. But in this matter he has not been accorded an unusual or different treatment as it was impossible to leave the portions occupied by different co -sharers in their possession. The Respondents also are not left to be owners of everything of what they had before and this was inevitable due to the peculiar structure of the properties. It is again urged that those rooms in the second, third or fourth storey of the Haveli that are above those allotted to him in the ground -floor should have been given to him. This again could not be practicable if a just and fair division were to to the function of the Commissioner. The deficiency is one aspect of the allotment to the Appellant as in the case of other co -sharers has been made good by granting him relief in some other manner, e.g., by giving to him a larger area than the rest. Lastly, it is contended that some of the rooms that had fallen to his share do not receive sufficient light and air. We have seen the plan which does not support his argument. The rooms allotted to him in the other storeys of the house do not suffer from any such alleged defect. Moreover, this is much too minor a grouse to warrant a reversal of a long and careful local investigation and we are satisfied that the division affected by the Commissioner is fair, just and equitable. He has not haphazardly adopted the proposals of any party but has minutely gone into details and his conclusions appear to us to be proper and judicious. The broad and cardinal points of difference between the parties have been substantially resolved, in Chandan Mull v. Chiman Lal : A.I.R.1940 P.C. 3 : I.L.R. 1940 Kar. P.C. 15 it was observed by their Lordships of the Privy Council that interference with the result of a long and careful local investigation except, upon clearly defined and sufficient grounds is to be deprecated. It is not safe for a Court to Act as an expert and to overrule the elaborate report of a Commissioner whose integrity and carefulness are unquestioned, whose careful and laborious execution of his task was proved by his report, and who had not blindly adopted the assertions of either party. In our opinion, in the present case, there is no cogent ground to set aside or modify the careful and elaborate report of Mr. Mittal which has been almost completely given effect to by the District Judge and we are unable to see any satisfactory reason for not accepting the grounds on which the judgment of the learned District Judge is founded. We would, therefore, dismiss the appeal with costs. Kartar Singh, J.
(3.) I agree.;

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