IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RFA No. 122 of 1998 a/w cross objection No.229 of 1998 Reserved on 07.04.2025 Decided on : 26.05.2025 ____________________________________________________ Uma Devi Chand and others ……….. Appellants Versus Mehar Chand Karol and others ……….Respondents ____________________________________________________ Coram: Hon'ble Mr. Justice Bipin Chander Negi, Judge Whether approved for reporting? 1 For the appellants : Mr. G.D. Verma, Sr. Advocate, with Mr. Sumit Sharma, Advocate. For the respondents : Mr. K.D. Sood, Sr. Advocate with Mr. Vivek Thakur, Advocate. : Mr. Ashok Sood, Sr. Advocate, with Mr. Rajat Advocate, for respondent No.7/cross/objector. : Mr. Anuj Gupta, Advocate, for respondents No. 8(a) to 8(c) : Name of respondents No. 1, 2 and 6 deleted vice order dated 3.11.1998. ____________________________________________________ Bipin Chander Negi, Judge Respondents No. 1 to 7 were the plaintiffs before the trial Court. They had filed a suit for partition by metes and bounds and had sought separate possession. The property in the case at hand sought to be partitioned is a building bearing Shop No. 6, 6/1, 6/2, Northbrook Terrace, The Mall Shimla. The same is 1 Whether the reporters of the local papers may be allowed to see the judgment? 2 situate on Khasra No. 114 as per the register, Khasra paimaish, bazar ward, Bada Shimla for the year 1907. The building is five storeyed. 2. Respondents No. 1 to 7 i.e. plaintiffs claimed to have a 9/24th share in the said property. Appellant No.1 i.e. defendant No.1 before the trial Court and proforma respondents No. 8 & 9 i.e. defendants before the trial Court in the plaint are alleged to have a 5/24th undivided share each in the aforesaid property. 3. The present appellant No.1 i.e. defendant No.1 before the trial Court filed a written statement. In the written statement so filed, it was averred that by virtue of a tenancy created in favour of her late husband Sh. R.L. Devi Chand a portion of the premises located in the top floor was being used as a residence. Portion beneath the same on the Mall Road level was being used for carrying on business under the name and style of M/s J.C. Bandliers. Besides the aforesaid the balance portion of the tenanted premises were being used as a godown and servant quarters. 4. The appellant No.1 i.e. defendant No.1 in the written statement filed further submitted that 5/24th undivided share in the property had been purchased by virtue of a registered sale deed from its previous owner i.e. Sh. Budh Ram Kuthiala. After the demise of her husband, business was being carried out by the said appellant in partnership with her daughter Mrs. Deepika 3 Singh. However, on account of ill health, business in the premises could not be continued. In the said backdrop the commercial premise was given a facelift by the appellant i.e. defendant No.1.On this account a considerable amount had been spent and the same thereafter had been let out to M/s Syndicate Bank. 5. In the aforesaid facts and attending circumstances, it was averred in the written statement so filed on behalf of the appellant i.e. defendant No.1 that it would not be possible to have property partitioned by metes and bounds amongst the parties to the suit, hence, it was prayed that the possession of the appellant be not disturbed and equities be adjusted in accordance with law. 6. No written statement was filed on behalf of defendant No.2. Defendant No. 3 filed a separate statement, wherein it was averred that the possession of defendant No. 3 is not in excess of their share i.e. 5/24th. Therefore, as per said defendant No.3, present respondents No. 1 to 7/plaintiffs before the trial Court were not entitled to actual physical possession of any portion of the property occupied by the defendants. 7. Replications to the written statements were filed on behalf of the plaintiffs reiterating, reasserting what had been stated in the plaint and denying contents in the written statements to the contrary. 8. During the pendency of the matter, parties entered into a compromise. The compromise formed the basis of a 4 preliminary decree passed in the case at hand on 8th September, 1992. In pursuance to the compromise so arrived, a Local Commissioner was appointed on 16.09.1992 to report as under:- (i) As to whether the present property is divisible by metes and bounds? if so, to divide the property in accordance with the share declared as above. (ii) The Commissioner shall also keep into consideration so as to protect the possession of each occupant of the property in proportion towards share and to make suggestions with respect to the respective share by taking into consideration the valuation and area of the property in possession of each owner as above. 9. Subsequent to the appointment as a Local Commissioner, the Local Commissioner submitted his report on 17.08.1993 (see court order dated 21.09.1993). Defendant No.3, defendant No.1 filed their respective objections. A reply to the objections filed by defendant No.1 was made by the plaintiffs/present respondents No. 1 to 7. Objections were also filed on behalf of the plaintiffs/present respondents No. 1 to 7. 10. Thereafter, according to the Local Commissioner, since there were minor discrepancies in recording of the area and in quantifying the rent, in his report submitted on 17.08.1993 a revised report was submitted by the Local Commissioner on 26.11.1993. Objections thereto were filed by the present respondents No.1 to 7/plaintiffs before the trial Court and by defendant No.3. Response to the same was filed by present 5 appellant/defendant No.1. A response to the objections filed by defendant No.3 was filed by present respondents No. 1 to 7/plaintiffs before the trial Court. 11. In the response filed by present appellant/defendant No.1 to the objections filed on behalf of the plaintiffs/present respondents No. 1 to 7, it was categorically stated that the corrections made in the revised report have been correctly made. Request on behalf of the plaintiffs/respondents No. 1 to 7 for increase of area held by present appellant/defendant No.1 on account of attic area alleged to be in the possession of the present appellant/defendant No.1 was categorically denied. Calculation of rate at the rate of Rs. 12 per square foot was submitted to be on the higher side and as per the appellant/defendant No.1, the same was required to be suitably/reasonably reduced. 12. In the objections filed by the appellant/defendant No.1 to the report initially filed by the Local Commissioner on 17.08.1993, it was contended on behalf of the present appellant/defendant No.1 that the report insofar as it pertained to retention of possession of the respective co-owners was correct, however, amount payable for retention of the excess was highly excessive. The basis of valuation was contended to be totally erroneous. Provisions of the Partition Act was stated to be observed more in their breach rather than in their compliance. 6 Amounts spent on giving a facelift to the portion in the occupation of Syndicate Bank done by the appellant/defendant No.1 was alleged to have not been taken into account. 13. Based on the objections filed by the parties on 10.06.1997, issues were farmed. At the time of framing issues, it was noticed that since parties to the lis had objected to the report of the Local Commissioner, therefore, the Court directed that the Local Commissioner be summoned as a Court witness. The Local Commissioner was examined on 25.06.1997. 14. Thereafter, the matter was posted for recording of evidence of the plaintiffs/present respondents No. 1 to 7. Two witnesses were examined on their behalf on 17.07.1997 and 18.07.1997. On 18.07.1997, the present appellant/defendant No.1 was examined. On recording the statements of the aforesaid two, parties closed their evidence. 15. After recording of evidence, the Court vide order dated 23.08.1997 noticed that the Local Commissioner had not submitted any plan with his report depicting the portions of the property proposed to be allotted to various co-sharers. In the absence of such a plan, the Court was of the view that the final decree would remain ambiguous. 16. In the aforesaid facts and attending circumstances, the Local Commissioner was required to prepare a plan of the property depicting therein by different colours the portions 7 proposed to be allotted to individual co-sharers. Fee for preparation of the same was paid by all the parties. The Local Commissioner had filed the map in the form of three ferro copies. Counsels for the parties vide order dated 6.11.1997 were permitted to inspect and examine the map so filed. None had objected to the same, thereafter, the matter was heard and the impugned judgment was passed. 17. Before the trial Court, only two contentions were raised on behalf of the plaintiffs/present respondents No. 1 to 7 and defendant No.3/present respondent No.9. The objections pertained to an alleged arbitrary scaling down of rental value of the first floor of the building i.e. floor above the Mall Road level from Rs. 20 per square feet per month to Rs. 12 square feet per month in the Local Commissioner revised report. The other objections raised by the plaintiffs/present respondents No. 1 to 7 and defendant No.3/present respondent No.9 pertained to the portion of the third floor of the building in the occupation of the present appellant/defendant No.1. As per the aforesaid two, there existed an attic area which according to them measured 1603.69 sq. feet, which had not been taken into account by the Local Commissioner. The trial Court after scrutinizing the pleadings and evidence on record found no merit in the first submission, however, insofar as the second submission was concerned, the same was accepted by the trial Court. In the judgment of the trial 8 Court, it was observed that the plaintiffs/present respondents No. 1 to 7 and defendant No.3/present respondent No.9 had not led any evidence with respect to other objections raised neither had their counsels at the time of the hearing raised any other objections with respect to the report of the Local Commissioner. 18. In the aforesaid backdrop, the trial Court was of the view that the second proposal given in the revised report being more equitable, practicable was accepted and parties were allotted shares in terms thereof. 19. In the aforesaid facts and attending circumstances, the first and foremost contention raised on behalf of the appellant is that inadmissible evidence has been taken into account by the trial Court. The inadmissible evidence referred to by the appellant are the three ferro copies of maps prepared by the Local Commissioner depicting therein in different colours the portions proposed to be allotted to the individual co-owners. 20. A perusal of the trial Court record specifically order dated 23.08.1997 categorically reflects that the preparation of the map in the case at hand depicting therein in different colours the portions proposed to be allotted to individual co-sharers was prepared at the behest/direction of the Court. A perusal of order dated 23.08.1997 reflects that the Court was of the view that since no plan alongwith the report of the Local Commissioner depicting the portions of the property proposed to be allotted to 9 various co-owners had been filed, therefore, it was felt that in the absence of such a plan, the final decree would remain ambiguous and hence the direction of the Court for the preparation of the map in the case at hand depicting therein in different colours the portions proposed to be allotted to individual co-sharers . No fault can be found in the said reasoning as in a partition suit, a court is required to define the shares of the parties, identify the joint properties which are to be partitioned, allocate properties to parties as per their respective shares and put the parties in possession of properties allocated to them. (See Rachakonda Venkat Rao v. R. Satya Bai, (2003) 7 SCC 452) 21. Further perusal of the order sheets i.e. 05.09.1997 and 13.09.1997 reflect that for preparation of the same, fee was demanded by the Local Commissioner. The said fee was proportionately divided amongst the co-owners and the same was deposited by each co-owners. The map prepared in pursuance to order dated 23.08.1997 was received in the Court on 28.10.1998. The map prepared was inspected by counsels for the parties in pursuance to the order dated 6.11.2017. Copy of the map prepared by the Local Commissioner was supplied to all the counsels. 22. The map prepared in the case at hand by the Local Commissioner is a pictographical description of the specific portion of the suit property which in terms of his report has been 10 allocated to the co-sharers. The same has been done at the behest of the Court in order to ensure that the final decree passed would not be ambiguous. None of the parties had objected to the preparation of the map rather they had contributed towards the expense incurred in preparation of the same. Post receipt of the same, copies had been supplied to the counsels for the parties. None had objected to its contents. 23. The Local Commissioner had appeared as CW-1. His statement had been recorded on 25.06.1997. In the cross- examination conducted by the present appellant/defendant No.1, no dispute qua the portion allotted to the co-sharers in terms of the report (as reflected in the map) of the Local Commissioner was raised. The map prepared in the case at hand is at best a necessary adjunct of the Local Commissioners report in the case at hand. No evidence to the contrary has been produced by the appellant nor has she stated to the contrary when she appeared as a witness. In view of the aforesaid, the contention raised qua the map filed by the Local Commissioner being inadmissible is bereft of any merit and hence deserves to be outrightly rejected. 24. The second contention raised on behalf of the appellant is that insofar as the second report is concerned, the same was filed by the Local Commissioner without any order from the Court. In other words the same it is argued had been done suo moto by the Local Commissioner. 11 25. The original report was filed by the Local Commissioner on 17.08.1993, the same is evident from the Court order dated 21.09.1993. Subsequent thereto, a second report was filed on 26.11.1993. To the said revised report, no objections had been filed by the present appellant/defendant No.1 despite having been given due opportunity to do the same. With respect to the second report, objections were filed only by the plaintiffs/present respondents No. 1 to 7 and defendant No.3/present respondent No.9. To the objections so filed on behalf of the aforesaid two parties, the appellant/defendant No.1 had filed her reply. 26. In this respect, suffice it to state that when the Local Commissioner had appeared as CW-1 on 25.06.1997, his testimony was subject to cross examination by the present appellant. No cross examination qua either the change in rental value in the second report nor qua the increase in area in the possession of the appellant was done by the appellant/defendant No.1. However, in this respect, detailed cross examination was conducted by the present respondents No. 1 to 7 i.e. plaintiffs before the trial Court. Other than the aforesaid, in the response so filed by the present appellant/defendant No.1 to the objections filed by the plaintiff/present respondents No. 1 to 7 to the report of the Local Commissioner, the appellant/defendant No.1 has not denied that there is an attic area above the portion of the third 12 floor in her occupation which measures approximately 1603.69 sq. meters. The objections filed on behalf of the appellant/defendant No.1 filed qua the first report of the local Commissioner only pertained to valuation. No separate evidence qua valuation was brought on record by the appellant/defendant No.1 despite having been given due opportunity for leading evidence. 27. The effect of non-cross examination is that the statement of witness has not been disputed. The rule of putting one’s version in cross examination is one of essential justice and not merely technical one. 28. The rule of evidence is common both to the civil and the criminal trials. Reference in this regard can be made to judgment in (2021) 11 SCC 1 titled Arvind Singh vs. State of Maharashtra, relevant extract whereof is being reproduced:- 62…………..The rule of putting one’s version in cross examination is one of essential justice and not merely technical one “15………….The effect of non-cross examination is that the statement of witness has not been disputed. 16. In Maroti Bansi Teli v. Radhabai, it has been laid down that the matters sworn to by one party in the pleadings not challenged either in pleadings or cross examination by other party must be accepted as fully established. In Rajinder Pershad (supra), the Supreme Court, inter alia, observed as follows: 13 "4. ... ... There is an age-old rule that if you dispute the correctness of the statement of a witness you must give him opportunity to explain his statement by drawing his attention to that part of it which is objected to as untrue, otherwise you can not impeach his credit. In State of U.P. v. Nahar Sing (dead) and Ors., [1998] 3 SCC 561, a Bench of this Court (to which 1 was a party) stated the principle that Section 138 of the Evidence Act confers a valuable right to cross-examination a witness tendered in evidence by opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by permitting a witness to be questioned, inter alia, to test his veracity. It was observed: "14. The oft-quoted observation of Lord Herschell, L.C. in Browne v. Dunn [(1893) 6 The Reports 67] clearly elucidates the principle underlying those provisions. It reads thus: "I cannot help saying, that it seems to me to be absolutely essential to the proper conduct of a cause, where it is intended to suggest that a witness is not speaking the truth on a particular point, to direct his attention to the fact by some questions put in cross- examination showing that that imputation is intended to be made and not to take his evidence and pass it by as a matter altogether unchallenged, and then, when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses." 44. In State of UP vs. Nahar Singh (D) & others (1998) 3 SCC 561; the Supreme Court observed: "13. It may be noted here that that part of the statement of PW-1 was not cross-examined by the accused. In the absence of cross-examination on the explanation of delay, the evidence PW-1 remained 14 unchallenged and ought to have been believed by the High Court. Section 138 of the Evidence Act confers a valuable right of cross-examining the witness tendered in evidence by the opposite party. The scope of that provision is enlarged by Section 146 of the Evidence Act by allowing a witness to be questioned: (1) to test his veracity. (2) to discover who he is and what is his position in life, or (3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to incriminate him or might expose or tend directly or indirectly to expose him to a penalty or forfeiture. 29. It is a common practice to suggest to a witness while he or she is under cross-examination. However I am of the opinion that in civil cases which are based on pleadings, there is no need for suggestions to be given. The practice of giving suggestions in cross examination to witnesses is of criminal trials where there are no pleadings and the defence is built up by giving such suggestions. A party in a Civil Trial is not required to in cross examination put its case to the witness as the same as aforesaid already exists in pleadings. Suggestions put are no evidence at all and on the basis of such suggestion no interference can be drawn. For the aforesaid reasons the second contention raised qua the second report filed by the Local Commissioner being bereft of any merit deserves to be outrightly rejected. 30. In the LC’s first report, attic space in the possession of the appellant/defendant No.1 had not been taken into account. Both the attic space in the possession of the appellant and its 15 nature has been determined by the learned trial Court post assessing the pleadings/objections, reply thereto and evidence on record. The same has not been assailed by the present appellant at the time of hearing of the appeal as no arguments in this regard were addressed. I have examined the pleadings, evidence on record in this respect and I see no reason to differ with a view taken by the trial Court. 31. Objections with respect to difference in the rental value of the floor above the Mall Road and the storey of the building abutting the Mall Road was raised before the trial Court by the petitioner i.e. respondents No. 1 to 6 and defendant No.3. The present appellant was not aggrieved by the same, hence did not raise any objections qua the same at the stage of hearing before the trial Court. Even before this Court in appeal no grievance qua the same has been raised by the defendant. Despite no objections having been raised by the appellant/defendant No.1, I have examined the pleadings and evidence in this respect and I see no reason to differ with a view taken by the trial Court. 32. Insofar as the applicability of the partition act to the present proceedings are concerned, suffice it to state that Sections 2 and 3 of the Partition Act are interlinked. The request for sale envisaged by Section 2 must be one for public sale. If no such request has been made to the Court, Section 3 cannot be 16 brought into operation, no such request within the purview of Section 2 had been made by any of the parties (co-sharers). That condition precedent for invoking Section 3(1) was lacking. Thus considered, it is clear that the provisions of Sections 2 and 3 of the Partition Act are not applicable to the peculiar circumstances of the case. As rightly pointed out by K. Subba Rao, C.J. (speaking for a Division Bench of Andhra High Court in R. Ramaprasada Rao v. R. Subbaramaiah AIR 1958 AP 647), in cases not covered by Sections 2 and 3 of the Partition Act, the power of the Court to partition property by any equitable method is not affected by the said Act. (Badri Narain Prasad Choudhary v. Nil Ratan Sarkar, (1978) 3 SCC 30). 33. The Local Commissioner in his report dated 26.11.1993, has detailed two options for dealing with the property in the case at hand. The Court at the first instance on assessing the entire matter had arrived at a conclusion that, option No.2 given in the report dated 26.11.1993 would be most equitable and practicable in the facts and circumstances of the case at hand. An appeal against exercise of discretion by the Court of first instance is said to be an appeal on principle. (see 1990 (supp) SCC 727 titled Wander Limited and another vs. Antox India Private Limited):- “14. The appellate Court would normally not be justified in interfering with the exercise of discretion under appeal solely on the ground that 17 if it had considered the matter at the trial stage, it would have come to a contrary conclusion. If the discretion has been exercised by the trial Court reasonably and in a judicial manner the fact that the appellate Court would have taken a different view may not justify interference with the trial court’s exercise of discretion. 34. No argument has been raised by the appellant/defendant No.1 before this Court that discretion exercised by the Court of first instance in the case at hand has been exercised arbitrarily, or capriciously or perversely or that the Court had ignored the settled principles of law regulating the same. 35. On account of purchase of the share of defendant No.1 i.e. Smt. Uma Devi Chand vide sale deed No. 153 dated 19.4.2005, the said Balbir Singh Verma vide order dated 3.6.2015 in an application filed under Order 1 Rule 10 CPC (CMP No. 720 of 2012) was impleaded as a co-appellant. 36. An application bearing No. 722 of 2012 has been filed by the said Balbir Singh Verma co-appellant, whereby he intends to place on record additional evidence wherefrom it can be deduced that besides the parties to the lis, the State also has a share in the property/building in the case at hand. Suffice it to state that preliminary decree in the case at hand based on a compromise was passed on 8.9.1992, the same has attained finality. No challenge to the same can be laid after passing of the final decree dated 8.12.1997 in the case at hand. 18 37. Cross objections bearing No. 229 of 1998 preferred on behalf of respondent No.7/plaintiff were not pressed at this stage. Accordingly, the same are dismissed. 38. In the aforesaid backdrop, I see no reason to interfere with the well reasoned judgment of the trial Court, therefore, the present appeal is dismissed. Pending miscellaneous applications, if any also stand disposed of. (Bipin Chander Negi) Judge 26th May, 2025 Tarun