NAGESH LAXMAN VERNEKAR v. ANANTH KRISHNA NAIK — 1998 DIGILAW 123 (KAR)

M. B. VISHWANATH, J. ( 1 ) THIS appeal has been filed under S. 100 of the C. P. C. The appellants are the plaintiffs. The respondent is the defendant. ( 2 ) THE plaintiffs filed the suit O. S. No. 10/1979 on the file of the Munsif, Kumta, against the defendant for partition and separate possession of their share in the suit property which is a shop measuring 201/2' x 12' in which the defendant, a stranger to the family of the plaintiffs, has been running a medical shop for the last so many years. ( 3 ) THE trial Court decreed the suit of the plaintiffs. ( 4 ) THE trial Court granted the plaintiffs 5/8 share in the suit property and said that the plaintiffs were entitled to possession of their 5/8 share. ( 5 ) THE trial Court committed a mistake. The suit property is not an agricultural property and assessed to land revenue. But the trial court stated that the Deputy Commissioner or his gazetted subordinate should partition the suit property. This portion is obviously wrong. ( 6 ) THE defendant, aggrieved by the judgment and decree passed by the trial Court, preferred appeal in R. A. No. 65/1986 before the Civil Judge, Karawar. The appellate Court confirmed the finding of the trial Court that the plaintiffs were entitled to 5/8 share and the defendant was entitled to 3/8 share since he had purchased the undivided share from one of the co-sharers Yamunabai. The appellate Court further gave a direction in the decree that the share of the plaintiffs should be allotted to the defendant and the compensation in money value should be given to the plaintiffs and this should be carried out by appointing a Court Commissioner for valuation and subject to the acceptance of the valuation by the Court. The plaintiffs are aggrieved by the appellate Court's direction that the share of the plaintiffs should be allotted to the defendant and the money value of the plaintiffs' share should be given to the plaintiffs. ( 7 ) NO doubt, Order 20 Rule 18 (2) says that in a partition suit the Court can give further directions as may be required. ( 8 ) THE only substantial question of law argued by both the Counsel relates to whether the direction given by the appellate Court was legally correct or not. ( 7 ) NO doubt, Order 20 Rule 18 (2) says that in a partition suit the Court can give further directions as may be required. ( 8 ) THE only substantial question of law argued by both the Counsel relates to whether the direction given by the appellate Court was legally correct or not. ( 9 ) NOW this Court has to see whether the further direction given by the appellate Court to the effect that the share of the plaintiffs should be allotted to the defendant and the money value should be given to the plaintiffs is correct or perverse. ( 10 ) IT bears repetition. The defendant is a stranger to the family of the plaintiffs. He purchased the property from a co-sharer. The plaintiffs filed H. R. C. No. 5/1968 against the defendant for eviction and possession of the 5/8 share in the suit property. The matter ultimately reached this Court in C. R. P. No. 2573/1982. ( 11 ) THIS Court, holding that eviction cannot be ordered unless the property was actually divided, directed the plaintiffs to file a suit for partition and work out their rights in the suit. ( 12 ) IT was then that the plaintiffs filed the suit which has given raise to this second appeal. ( 13 ) THE defendant has been in possession of the suit property for the last so many years. The reasoning given by the first appellate Court that the plaintiffs shall be entitled to the money value of their share is that the property measures 201/2' x 12' where the defendant has been running a medical shop for the last so many years. In case 5/8 share is delivered to the possession of the plaintiffs, the defendant would be much inconvenienced to run the shop and he cannot run the shop in a small portion of 3/8. Therefore the defendant should be given an option to purchase the 5/8 share of the plaintiffs for a reasonable price. So says the first appellate Court. ( 14 ) GREATER share in the suit property belongs to the plaintiffs. Smaller share belongs to the defendant. The defendant is a stranger to the family of the plaintiffs. The property is the family property of the plaintiffs. Obviously they will have emotional and sentimental attachment to the property. So says the first appellate Court. ( 14 ) GREATER share in the suit property belongs to the plaintiffs. Smaller share belongs to the defendant. The defendant is a stranger to the family of the plaintiffs. The property is the family property of the plaintiffs. Obviously they will have emotional and sentimental attachment to the property. The appellate Court has been generous to the defendant at the cost of the plaintiffs. The defendant cannot be permitted to walk away with property. ( 15 ) THE reasoning given by the first appellate Court that the defendant would be inconvenienced to run the shop if he does not get the 5/8 share of the plaintiffs is perverse and illegal. ( 16 ) IT is argued by the learned counsel for the respondent-defendant that the property cannot be divided. This argument has no force. Night and day Courts have been ordering partial eviction even in respect of smaller portions. Moreover the appellate Court has not given a finding that the property cannot be divided. The appellate Court says that the defendant has been running a medical shop, ignoring that the plaintiffs are also goldsmiths and they might choose to carry on the family business. ( 17 ) THE learned counsel for the respondent-defendant relied on the decision reported in 1989 (3) Kar LJ 65 Janardhan Jog v. Srikrishna. This decision has been rendered under Order 12 Rule 6, CPC which speaks of granting preliminary decree on admitted facts. He also relied on the judgment reported in AIR 1978 SC 845 Badri Narain Prasad Choudary v. Nil Ratan Sarkar, where taking into consideration two circumstances, viz. , equities of the case and that the property was 'incapable of division', the Supreme Court ordered that the defendant who was the smaller co-sharer of the shop-cum-residence should be given preferential right to retain the whole of the property on payment of compensation. This was a case in which the property was incapable of division. In the instant case, it cannot be said that the property is incapable of division. I am of the opinion that the two authorities relied on by the learned counsel for the respondent-defendant are not applicable. This was a case in which the property was incapable of division. In the instant case, it cannot be said that the property is incapable of division. I am of the opinion that the two authorities relied on by the learned counsel for the respondent-defendant are not applicable. ( 18 ) FOR the aforesaid reasons the direction of the first appellate Court allotting 5/8 share to the defendant and ordering that money value should be given to the plaintiffs by appointing a Court commissioner for valuation and acceptance of the Court is perverse. Accordingly this direction is annulled. It is open to the parties to the suit to auction among themselves through the agency of the Court and purchase the share of the other. Otherwise the property shall be actually divided by metes and bounds and the parties put in possession of their respective shares (plaintiffs their 5/8 share and the defendant 3/6 share ). The second appeal is allowed in part as stated above. Each party to bear his own costs in this appeal. Appeal allowed. --- *** --- .