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5. Accordingly learned Advocate Mr. Subhash Chavan, a Court Commissioner conducted inspection sought assistance of Civil Engineer Mr. Tushar Mistri and prepared detail report with maps. The maps are prepared showing partition of 1/3rd share each to the litigating parties. He suggested the partition by report at Exhibit-100 for all the floors of the subject matter. The petitioners submitted Say on 20.06.2023 and raised various objections. The partition suggested by the Court Commissioner vide his report is stated to be not acceptable. The predominant grievance of the petitioners is for carving out three shops at the ground floor by effecting structural changes.

7. The learned counsel for the petitioners submits that the application for final decree proceeding still pending. The petitioners objected the report of the Commissioner (Exhibit-100). When there are serious objections for effecting partition by metes and bounds as per the report, issuing possession warrant directly, is without jurisdiction and arbitrary. He submits that the structural changes suggested by the Commissioner are not viable and detrimental to the entire subject matter. It is not possible to execute the decree as suggested by the Commissioner.

11. The petitioners have objected report of the Commissioner (Exhibit-100) by submitting Say at Exhibit-103 on 20.06.2023. In 6 912.WP-12956-2023.doc paragraph no.5 of the Say, the concern is expressed that to effect the structural changes as suggested by the Commissioner is detrimental to the building.

12. After submitting Say, the learned trial Judge is expected to consider the rival submissions in final decree proceeding. As the preliminary decree is for the partition, the Court has to take into account the report of the Commissioner for effecting partition by metes and bounds. The structural changes suggested by the Commissioner or modified thereafter have to be physically carried out. After executing the structural changes, the subject matter becomes ready for handing over equitable shares to the parties. I find that all these stages are missing in this matter.

13. The respondents submitted application (Exhibit-102) for issuing possession warrant of their shares and by the impugned order, the possession warrant is issued as if the structural changes suggested by the Commissioner have been carried out and the shares are ready for the allotment. The impugned order is premature and it is without jurisdiction. The petitioners have rightly contended that the Commissioner's report is accepted as a gospel truth and without carrying out the structural changes, possession warrant is issued.