JUDGMENT Vikramajit Sen, J.
1. By order dated 8.9.1999 Mr. Kirti Uppal, Advocate had been appointed as the Local Commissioner with the directions to visit 54, Friends Colony, New Delhi. He was directed to get a plan of the property prepared through a qualified architect for the purpose of demarcating separate shares of each of the parties to the suit. How-ever, in case, he found that the property was not divisible by metes and bounds in four equal shares, he was directed to report accordingly.
2. Mr. Uppal has submitted his Report, after carrying out the local inspection of the property in suit. In his opinion, it would not be possible to divide the property into four equal parts and hence he did not consider it necessary to have a plan prepared through a qualified architect. Objections against this Report had been filed by Shri Bikramjit Singh, Defendant No. 1 The allegation against this Defendant is that he is in occupation of the substantial part of the properly in suit and hence is interested in delaying its final determination. Learned Counsel for the plaintiff had extensively relied on the Reply filed by the said Defendant to I.A. No. 681/1998, which had been filed by the Plaintiff, seeking the appointment of the Local Commissioner. In the Reply filed by Defendant No. 1, it had been repeatedly averred that the suit property was not capable of being partitioned by metes and bound. In paragraph 5, Defendant No. 1 has stated that "the nature of the property is such that it is meant only for occupation of one family and cannot be divided into separate units. Sub-division of the plot is not permissible by the authorities". This statement is repeated in several places. Mr. Bansal, Learned Senior Counsel appearing for Defendant No. 1 has, however, submitted that this was only an opinion which was expressed by Defendant No. 1 and would not bar or obstruct the said Defendant from taking a contrary view. I am unable to appreciate this argument for the reasons that the statement made in pleadings have great significance and cannot be lightly ignored. No satisfactory reason had been given for justifying the so-called change in opinion. In any event, the oral submissions now been made are contrary not only to the pleadings, but to the opinion of all the parties; including the Local Commissioner.
3. At this juncture since a Preliminary Decree has already been passed declaring that each of the four parties here to have equal shares in the property, these questions need not be gone into Mr. Bansal, Learned Senior Counsel appearing for the Defendant has further submitted that since an Appeal against the Preliminary Decree had been filed, no further consideration of the case is called for. It is, however, not in dispute that the Hon'ble Division Bench has only interdicting the passing of final orders. It is also not in dispute that the parties have 1/4th share each. The contention of Defendant No. 1 is that the has acquired the shares of other co-sharer, apart form the Plaintiff, and hence had a 3/4th share in the property. Even if this statement is to be assumed to be correct at this stage, it would not in any way impede the passing of the orders which I consider, appropriate to pass. If the stand of Defendant No. 1 is sustained before the Division Bench, only the apportionment would be changed. The Plaintiff would then continue to be entitled to. 1/4th share and would hence be fully empowered to pray for partition of the suit.
4. The Plaintiff submits that the suit property cannot be partitioned by metes and bound and therefore, that it be put to sale. The view of the Local Commissioner is the same. It is, therefore, not necessary to go into the arguments of Learned Counsel for Defendant No. 1 that the Local Commissioner ought to have considered and specifically dealt with in his Report the objections/submissions/suggestions raised by Defendant No. 1 The Local Commissioner is merely a adjunct of the Court and acceptance of his Report is entirely in the discretion of the Court.
5. I am fully satisfied that the property is incapable of being partitioned by metes and bound. Division of the property, as has been, pleaded by Defendant No. 1 himself, and as is common Knowledge, is not permissible. The existing structure, again as pleaded by Defendant No. 1, can conveniently be used by only one party. When the siblings are hotly contesting their rights in Court, it cannot be expected that they can live harmoniously together. The present case, therefore, discloses that a partition of the suit property is imperative and that this exercise should be completed expeditiously. It is common knowledge that the party who is substantially in possession of the suit property, is desirous of protracting the litigation.
6. In these circumstances, I am of the opinion that a division of the property cannot be reasonably or conveniently made and that the sale of the property and distribution of the proceeds would be very beneficial for all the shareholders.
7. The Plaintiff and Defendant No. 1, as also the other co-sharers, are directed to submit their sealed offers/bids for the sale/purchase of their respective rights in the suit property. These bids/offers should be filed in Court within thirty days. In case the property cannot be disposed of in this manner, i.e. the procedure established by the Partition Act, 1893, the question of its sale by public auction could be considered.
8. Both the I.As. stand disposed of.
S. No. 3235/1988 9 Refortify the matter on 4th December, 2000 in Chamber on which date the sealed bids of the parties would be opened and considered.