KOTHARI, J. - (1.) THE present case has a chequered history of litigation and the judgment debtor and defendant - Ganga Singh has been multiple rounds of litigation to avoid the execution of the preliminary decree of partition against his residential house in a portion of which he is residing and the history of litigation dates back to 1968 when the plaintiff respondent - Chotu Singh, a stranger to the family, instituted a money recovery Suit No. 42/68 on 9.10.1968 in the Court of Addl. Civil Judge, Jodhpur and obtained the money decree against Ganga Singh - the present petitioner and in execution thereof vide Execution Case No. 7/72, the plaintiff - Chotu Singh himself purchased 3/10 share in the said residential house in an auction proceedings held by the trial Court and he was issued the sale certificate on 26.2.1976 and symbolic possession was given to him.
(2.) THEREAFTER , Chotu Singh filed another suit for partition of the house viz., Suit No. 206/1985 claiming partition by metes and bounds of the said 3/10th share against the defendants - joint owners and after the trial on 2.12.1991 a preliminary decree of partition was made by the learned trial Court 5 for partition of the house allowing 3/10th share to the plaintiff - Chhotu Singh while the defendant No.1 - Ganga Singh and defendant No.2-Guman Singh were allotted 1/5 each share and defendant No.3- Om Singh and defendant No.4 - Manohar Singh were allotted 1/2 share in the house. It was further ordered that in case partition by metes and bounds is not possible, then the said house shall be put to auction and amount of sale proceeds to the extent of 3/10th share shall be payable to the decree holder plaintiff-Chotu Singh, while the balance money shall be apportioned amongst the other defendants- joint owners. The plaintiff decree holder - Chhotu Singh filed an application under Order 20 Rule 18 read with Section 151 CPC on 16.4.1993 for grant of final decree in aforesaid terms and requested that the said house may be partitioned by metes and bounds and 3/10th share of the plaintiff decree holder - Chhotu Singh maybe physically delivered to him and in case same is not possible, the said house may be put to public auction and proportionate share money be paid t him. The relevant prayer in the said application was :- JUDGEMENT_2181_RAJLW3_2012img812013m4.jpg
(3.) ON 2.8.1985, the learned trial Court appointed Shri Jai Dev Bohra, Advocate, as Commissioner and sought report of partition of said house by metes and bounds, however, on 7.10.1995, after 10 years, the Commissioner reported to the learned trial Court that the suit premises could not be partitioned by metes and bounds and the decree could only be executed by ordering the public auction of the same and not otherwise. On 8.12.1995, the learned trial Court directed the parties to appear before the Court on 12.1.1996 for valuation of house and to propose the minimum amount of reserved bid for auctioning the suit house by way of public auction and finally the said house was put to auction on 4.5.1996 and the plaintiff - non applicant (Ganga Singh) filed an application under Section 4 of the Partition Act on 14.2.2001, Ex.1 on record, before the learned trial Court that since the valuation of the house is less, the present petitioner, being fully aware of Section 3 and 4 rights, as stated in para 3 and 4 of the said application, filed such application under Section 4 read with Order 26 Rule 10 and 16 CPC and asked for proper valuation of said property. The said request was accepted by the learned trial Court vide order dated 26.4.2006 and the valuation of suit house was determined at Rs. 8,96,360.00 on the basis of report of Executive Engineer, PWD. However, the present petitioner did not exercise his right to buy 3/10th share of decree holder Chhotu Singh at this stage. Against the orders dated 19.3.1996 and 4.5.1996, one of the co-sharers, defendant - non-applicant, Mst. Bhanwari Devi - sister of present petitioner Ganga Singh filed a revision petition before this Court, namely; Civil Revision Petition No. 628/1996, which came to be decided by the coordinate bench of this Court on 1st July, 1998 and this Court clearly held in para No.40 and 41 as under :- "40. The trial Court shall, after inquiry, pass final decree in the matter thereby giving appropriate directions for sale of property, if any, and for the apportionment of the sale proceeds between the parties in terms of preliminary/final decree, otherwise, the present proceedings before the trial Court shall stand frustrated, necessitating no final decree after the sale proceedings are complete. 41. Hence an inquiry in relation to valuation of the suit property before fixing reserved bidding price of the suit property before putting the same to public auction is necessary to enable the parties to exercise their rights as laid down under Sections 2, 3 and 4 of the Partition Act, 1893 before proceedings under the provisions of Sections 6, 7, 8 and 9 of the Partition Act, as the case may be." ;