JUDGMENT - DESHPANDE D.B., J.: - This appeal raises a short question as to whether the provision of Partition Act, 1983 could be followed by the Appellate Court and have been followed by Appellate Court while passing final decree for partition and it arises in the following manner. 2. A preliminary decree for partition and separate possession of plaintiff's 9/20th share was passed by the trial Court in Civil Suit No. 159 of 1966. I was found that in this property defendant No. 1 had 8/20th share and defendant No. 2 had 1/20th share and defendant No. 3 had 2/20th share. One Shri Thengadi Advocate was appointed as Commissioner to propose partition of the suit property in accordance with the aforesaid shares. Accordingly, the Commissioner visited the spot and proposed certain partition and submitted his report which is at Ex. 55 in the trial Court's record. The Commissioner found that the defendant No. 1 was in possession of excess area of 265 sq.ft. over the area she was entitled to receive by way of her share in this partition. The Commissioner reported that the defendant No. 1 should be allowed to retain this excess area of 265 sq.ft. with her and he made a report that the other shares i.e. plaintiff and defendants Nos. 2 and 3 should be compensated by payment at the current market rate prevailing in the year 1967. The Commissioner observed that he made enquiries for the rate and according to him, rate was 0.50 p. per sq.ft. and so he directed that the plaintiff should be paid Rs. 2250/-; defendant No. 2 should be paid Rs. 73.50 and defendant No. 3 should be paid Rs. 36.50. The Commissioner observed as follows: “The given report is suggestion for partition of the respective shares. Moreover, defendant No. 1 has no ostensible means to live except that structural construction. Defendants 2 and 3's individually shared area is very small and is not suitable for any construction or use to them. The plaintiff's share is not put to any loss.” 3. Defendant No. 1 accepted this report of the Commissioner, whereas defendants 2 and 3 who now appear to have jointed hands, resisted this proposal of the Commissioner. Defendants 2 and 3's individually shared area is very small and is not suitable for any construction or use to them. The plaintiff's share is not put to any loss.” 3. Defendant No. 1 accepted this report of the Commissioner, whereas defendants 2 and 3 who now appear to have jointed hands, resisted this proposal of the Commissioner. After going through the relevant records, learned trial Judge held that the Commissioner's report was not acceptable and he directed that the defendant No. 1 shall put plaintiff and defendants 2 and 3 in joint possession of 265 sq.ft. area to south of the line FE as shown in the plaint map after removing her structure on that area. Feeling aggrieved by this order, defendant No. 1 preferred appeal to the District Judge and this appeal was heard by the learned District Judge at Nagpur. The learned district Judge applied the principles of the Partition Act of 1893 and held that the report submitted by the Commissioner was quite proper and, therefore, he set aside the order passed by the Trial Court and passed the following order: “In the result, I accept the appeal, set aside the order and the final decree directing the defendant No. 1 to put the plaintiff and the defendant Nos. 2 and 3 in joint possession of 265 sq.ft. indicated by letter EFGH and directed that - (i) The plaintiff be declared to be the owner of the property shown by the letters ABEF in the Commissioner's map and he should take this property by way of his share. For the share of 45 sq.ft. he would be compensated in terms of money. (ii) The defendant No. 1 shall take way of her 45 paise share of the property described by the letter GHCD. The excess area of 245 sq.ft. indicated by the letters EFGH shall be valued according to the prevailing market rates. The trial Court shall record the evidence to determine the adequate price of this are EFGH. Upon such valuation, the defendant No. 1 shall pay plaintiff and the defendants 2 and 3 compensation in terms of the value of their share in the property represented by the letters EFGH i.e. the plaintiff shall be the value for the area of 45 sq.ft., the defendant No. 2 for the area of 147 sq.ft. and the defendant No. 3 for the area of 73 sq.ft. and the defendant No. 3 for the area of 73 sq.ft. (iii) On ascertaining the market value of the area marked by the letters EFGG in the Commissioner's map and after determining the monetary compensation payable to the plaintiff and defendants Nos. 2 and 3, the trial Court shall draw a final Decree in the light of the observation made and the directions given above on recovery of Court fee on the value of shares accorded to the Defendants Nos. 2 and 3.” Feeling aggrieved by this order, plaintiff and defendants 2 and 3 have filed this appeal. 4. The question for consideration in this appeal is whether provisions of Partition Act are applicable to the facts of this case and whether the provisions are observed by the Appellate Court while passing final order. Section 2 of Partition Act runs as follows: “Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the Court that, by reason of the nature of the property to which that suit relates, or of the number of the shareholders therein or of any other special circumstance, a division of the property cannot reasonably or conveniently be made and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, if it thinks fit, on the request of any such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds.” It does not appear from the report of the Commissioner that the division of the property cannot reasonably or conveniently be made. That does not seem to be the purport of the report of the Commissioner. In fact, this is the very basis for making the provisions of Partition Act applicable. The report of the Commissioner shows that the Commissioner has better relied upon the convenience of the parties. The Commissioner has not reported that it is not possible to effect partition of the property in accordance with the share of the parties defined in the preliminary decree and hence the provisions of Partition Act are not applicable to the facts of the instant case. The Commissioner has not reported that it is not possible to effect partition of the property in accordance with the share of the parties defined in the preliminary decree and hence the provisions of Partition Act are not applicable to the facts of the instant case. Secondly, section 2 of the Partition Act directs that if the partition cannot reasonably or conveniently be made sale of property should be ordered and distribution of the sale proceeds should be made to the share-holders in accordance with the shares. It is apparent from the order of the Lower Appellate Court that the Lower Appellate Court has not ordered sale of the property but has directed that the defendant No. 1 should be allowed to retain that portion with her and I have pointed out that while doing so, the Commissioner has reported that because defendant No. 1 has no ostensible means to live, he was proposing that the other should be compensated in terms of the money. I do not think that such a course is open and unless it is possible to hold that partition in accordance with shares is impossible no third course can be followed by the courts and the partition has got to be effected in accordance with the shares. It was urged by Mr. Khan appearing for the defendant that the shares of defendants 2 and 3 were very small but in this appeal plaintiff and defendants 2 and 3 have joined hands and they are prepared to take joint possession of the excess area which is in possession of the defendant. The report of the Commissioner shows that the structure that is standing is structure of Banboo and thatched roof and there will not be much difficulty in changing place of construction and shifting it to the portion which is already in possession of the defendant No. 1 and which would be allowed to the share of defendant No. 1 and hence it is clear that partition can be effected in accordance with the shares, and the order passed by the Appellate Court is not at all legal and is not correct and, therefore, it deserve to be set aside and that of the Trial Court deserves to be restored. Appeal is, therefore, allowed. Appeal is, therefore, allowed. Order of the Appellate Court is set aside and that of the Trial Court is restored but in the circumstances there will be no order as to costs of this appeal. Appeal allowed. -----