2005 PLP 1954 (YLR)

Brief facts giving rise to the filing of this revision petition are that a partition suit was tiled and preliminary decree dated 5-12-2000 was passed by the learned trial Court. The trial Court thereafter vide order dated 25-1-2003 appointed Rana Munir Ahmad Khan as Local Commissioner, who visited the site and submitted report. The parties were provided opportunity to file objections, so much so, on 9-6-2003 last opportunity was granted and resultantly, the right for submitting the objections was closed on 27-6-2003.

2. Learned counsel for the petitioner states that the report of the Local Commissioner suggested two modes for the division of the property which are as under:- (i) Firstly, superstructure and machinery installed over the suit property be sold out and after removing the same plain land measuring 11 Marlas be divided in equal share. (ii) Secondly, after selling the suit property, price thereof be divided among the legal heirs. The learned trial Court opted the second mode which is also suitable to the parties. Learned counsel for the petitioner contends that the property is ancestral and the legal heirs have emotional attachment with it, which can only be safeguarded if the property instead of being sold, is divided among the legal' heirs. Adds that he has filed objections but they were submitted subsequent to order dated 27-6-2003. He has referred to section 2 of the Partition Act, 1893 to contend that the division of the property cannot be denied in a partition suit, when its division can reasonably and conveniently be made.

3. Learned counsel for the respondents, on the other hand, referred to the report of the Local Commissioner and stated the said report reveals that there exists an ice factory with the capacity of 200-blocks and machinery, installed thereon which is in working condition besides the service station which too is in running condition. If the machinery is sold, it will diminish its value. Since the ice factory and service station in working condition, it shall fetch more value than its sale after dismantling it. He has further argued that no illegality has been pointed out by the petitioner and the scope of revision, against the concurrent findings of two Courts, is narrow. Learned counsel for the respondent has referred to the case titled "Mohabir Rai and others v. Mahadeo and others" AIR 1927 Allahabad 686, wherein it Is held that a partition ought not be made, if by partition the intrinsic value of the property sought to be partitioned would be destroyed, and in such a case, money compensation should be given in lieu of the share to which a share holder may be entitled.

4. Heard learned counsel for the parties.

5. The provisions of section.2 of the Partition Act, 1893 provide for sale of property and distribution of the proceeds if it is more beneficial for all the share holders. The sale of the property with machinery installed and superstructure raised thereon shall fetch more value than the sale of the machinery after is dismantling. The later course, i.e. sale of machinery separately and division of property among the sharers, if adopted the intrinsic value of the property will be destroyed. All the legal heirs except the petitioner are in favour of the mode, which the learned trial Court has adopted on the suggestion of the Local Commissioner.

6. I do not find any subsistence in this revision petition and the same is dismissed with no order as to costs. H.B.T./A-469/L Revision dismissed.