Shree Chandrashekhar, J. - (1.) The petitioner, who was the plaintiff in Partition Suit No. 171 of 2006, is aggrieved of order dated 31.10.2017 by which the trial court has refused to accept the Pleader Commissioner's report dated 23.02.2017 and appointed another Pleader Commissioner for a report.
(2.) It is not in dispute that the judgment and decree passed in Partition Suit No. 171 of 2006 was set-aside by the appellate court in Partition Appeal No. 84 of 2012 and the parties are held entitled for 1/4th share in the suit schedule properties. Stand taken by the petitioner is that he is entitled to have 1/4th share in each and every property comprised under the suit schedule properties.
(3.) By now it is well-settled that in the final decree proceeding which is sometime called Takhtabandi convenience of the parties has also to be kept in mind. The plaintiff himself has asserted that by virtue of a previous partition the parties were in possession of their respective shares and are living peacefully thereon. The suit schedule properties consist of residential houses of the parties. The plaintiff has asserted that he must be given his share in the house under occupation of the defendants and the Pleader Commissioner has also prepared a report accordingly. This report in my opinion has rightly not been accepted by the trial judge. In a dwelling house which is in occupation of the defendants, the plaintiff cannot claim that he has an absolute right to have a share in that house. All that the petitioner can insist is that he must get 1/4th share and not that 1/4th share in the house occupied by the defendants also.;