JUDGMENT Deoki Nandan, J. - This is a defendant's second appeal from a final decree of partition. The property to be divided is a house No. CK-43/1 Govindpura Kalan at Varanasi. The respective Shares of the two contending parties are 1/2 each. It appears that only the appellant who was the first defendant in the suit had contested it. After the preliminary decree a commission was issued to the Civil Court Amin for preparation of a scheme for partition. He submitted his report dated 14th January, 1971 along with a map - papers nos. 72-Ga and 73-Ga respectively, whereby the house which is two storeyed was divided by a red line drawn north-south on the map, the plaintiff's portion being the eastern one and shaded red. There is no dispute that the division proposed by the Amin did result in an equal division of the house into two portions of almost equal value, the total value of the house arrived at by the Amin being Rs. 20,232-40 P. and the value of the eastern portion proposed to be allotted to the plaintiff being Rs. 10, 337-10 P. and the excess of Rs. 220-90 P. being proposed to be paid by the plaintiff to the defendant. The further advantage in the division proposed by the Amin lay in the fact that the property of the plaintiff's mother is adjacent to the eastern portion proposed to be allotted to him but the great objection to the division proposed by the Amin was that although the building is double storeyed, the defendant would be left with no means of getting on to the first floor and the shop in the front will have to be divided by raising a wall in a such manner as to completely destroy its utility and value, and further the defendant's portion would not have the essential amenities of water tap and latrine etc. The Amin had also reported that basically the house was so small that essential amenities cannot be provided for that portion. The proposed division of it would be destructive of its utility as a house. The Amin had also reported that basically the house was so small that essential amenities cannot be provided for that portion. The proposed division of it would be destructive of its utility as a house. The trial court noticed the observations of the Amin and noted the contentions of the defendant that the house was impartible and the whole of it should be allotted to him as he was living therein and the plaintiff could be compensated by payment of the value of his share in cash. The plaintiff was on the other hand prepared to take either of the two portions into which the house had been divided by the Amin. Neither of the parties was prepared to have the house sold to the highest bidder among the co-sharers. According to the trial court, apparently the house appears to be impartible, because in any partition scheme the other co-sharer would be deprived of the basic amenities like water pipe, latrine, courtyard and stair case and there would be no space for provision for such amenities in the other portion but in view of the fact that the property to the east was owned by the plaintiff's mother, the trial court found an alternative by which the house could be partitioned into two portions. The alternative was to give the two shops and the room on the south on the ground floor and the area on top of the same on the first floor marked of by the letters ABCEF-GHI on the Amin's map, to the plaintiff and leave rest of the house to the defendant. Inequality in value of the two portions was to be compensated by payment of owelty to be assessed after the valuation of the two portions as proposed by the trial court. It ordered accordingly. In the alternative the trial court also ordered that if neither of the parties took necessary steps for valuation of the two portions as marked off by it, the scheme shall be treated as dead and the house shall be auctioned among the co-sharers and the co-sharer bidding the highest price would be entitled to get it because except on the basis proposed, the house appeared to be impartible. 2. The plaintiff appealed from the said final decree to the lower appellate court. The lower appellate court observed that the trial court appears to have been of two minds. 2. The plaintiff appealed from the said final decree to the lower appellate court. The lower appellate court observed that the trial court appears to have been of two minds. In the earlier part of the judgment, the trial court observed, that the Amin's report is correct and in the latter portion that the house was so small that it is impartible and the intrinsic value of the house would be destroyed if portion were made according to the scheme proposed by him, 'The lower appellate court did not agree with the Amin's report that the house: was impartible or with the observations of the trial court to that effect. According to the lower appellate court the house was partible and the plaintiff was prepared to take the western portion which did not have either of the basic amenities. In the result the lower appellate court allowed the appeal and directed that the defendant shall get the eastern portion of the house shaded red on the Amin's map, paper No. 73-Ga, and the plaintiff shall get the western portion and further that the defendant shall accordingly pay Rs. 220-90 P. for the difference in the value of the portion allotted to him. 3. Having perused the judgments of the two courts below and having seen the map 73-Ga, prepared by the Amin, and having heard learned counsel for the parties in this case, I find that the judgment of the lower appellate court is wholly unsupportable. It is only a paper scheme of partition. The learned Additional District Judge did not apply his mind to the question as to how the plaintiff will get possession over the western portion and as to how he will go on to the first floor. It is impossible to divide the house in the manner ordered by the lower appellate court and to put the parties into separate possession over the portions allotted to them respectively. 4. Learned counsel for the defendant-appellant urged that the scheme of partition prepared by the trial court was the best in as much as the plaintiff could connect the southern portion with the adjacent house which belongs to his mother, and can use the ground floor as well as the first floor without any difficulty. 4. Learned counsel for the defendant-appellant urged that the scheme of partition prepared by the trial court was the best in as much as the plaintiff could connect the southern portion with the adjacent house which belongs to his mother, and can use the ground floor as well as the first floor without any difficulty. As to the inequality of the value of two portions, the learned counsel was prepared to offer that the middle shop on the western side may also be added to the plaintiff's portion which would increase the area of the roof in his possession on the first floor, and would more than equalise the value. Indeed, the value of the portion so allotted to the plaintiff would probably be greater than the portion allotted to the defendant, but the defendant was living on the first floor and carrying on his business in the shop on the ground floor and because of this he was prepared to make that sacrifice. The offer appears to be equitable and fair. 5. In the result the appeal succeeds and is allowed. The decree under appeal is set aside. Instead, there shall be a decree dividing the house in such a way that the shops on the north and north-west, the courtyard, and the stair case with water tap and the latrine on the ground floor, and the verandah, the room and the open space above the same on the first floor, will go to the defendant appellant's share, while the two shops on the west and south west and one on the south and the room on the south east on the ground floor with the roof, the tinshed and the room above that room will go to the plaintiff. The walls enclosing the plaintiff's portion have been shaded blue by me on the Amin's map 73-Ga and the plaintiff's portion is now shown by the letters ABB C CEFGHI A. These walls shall be the joint property of the parties. The walls enclosing the plaintiff's portion have been shaded blue by me on the Amin's map 73-Ga and the plaintiff's portion is now shown by the letters ABB C CEFGHI A. These walls shall be the joint property of the parties. The defendant shall close the door in the northern wail of die middle shop on the south which opens into the courtyard, and without in any manner affecting his right of approach to the first floor from the existing stair case, and subject to this right of approach from the stair case, he shall erect a partition wall on the first floor between the points shown by the letter C,E,F and G within three months. Cost of closing the door and the raising of the partition wall on the first floor shall be borne by the plaintiff entirely but the partition walls shall be joint property. The defendant appellant shall be entitled to recover his costs of the appeal in this court and in the lower appellate court from the plaintiff respondent, who shall pay the entire costs of the proceedings for preparation of the final decree in the trial court. The costs of the suit upto the stage of the preliminary decree shall be taxed and recovered according to the trial court's preliminary decree dated 11th December, 1967. Possession shall be delivered to the plaintiff over the portion allotted to him after the partition walls have been erected and the expenses thereon and all other costs are determined, adjusted and paid.