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2001 DIGILAW 138 (MP)

GANPAT SINGH v. JAIRAM

2001-02-13

A.K.GOHIL

body2001
A. K. GOHIL,J. ( 1 ) THE appellant-plaintiff has preferred this appeal against the judgment and decree dated 18. 11. 1980 passed in Regular appeal No. 49-A/79 by the Addl. District judge, Dewas reversing the judgment and decree dated 28. 9. 1979 passed in C. O. S. No. 92-A/59 by Civil Judge Class II, Sonkatch, who passed the final decree for partition of the property. ( 2 ) THE appeal was admitted for hearing on the following substantial question of law:"whether the learned Appellate Court was justified in law in ordering the sale of the suit house in a suit for partition even when the respondent had not objected to the report of the Commissioner filed in the Civil Court, in view of Section 2 of the Partition Act?" ( 3 ) THE Trial Court decreed the suit of the appellant-plaintiff for partition against which the respondent-defendants preferred first appeal and submitted that during the pendency of First Appeal No. 182/69 the matter was compromised between the parties and the commissioner was appointed for partition of the property. The Commissioner submitted his report on 14. 9. 1970 which is on record as ex. P1 and the Ex. P2 is the map. After the memorandum of partition filed by the Commissioner the respondents/defendants objected that as per the situation of the house in dispute which is 84 ft. X 17ft. and if it is partitioned half:half then it will create inconvenience to the parties and in that case both the parties shall not be in a position to use the same because on road the width of the house is 17 feet. The first Appellate Court found that because both the parties are not on agreement on the question of partition of the house as suggested by the Commissioner, therefore, looking to the situation and condition of the house under the provisions of Section 2 of the partition Act, 1893 it would be in interest of justice if the disputed house is sold and proceeds be distributed between the parties in accordance with their respective share in the property. The submission of Mr. Garg, learned counsel for the appellant is tht the decree granted by the Trial Court be restored and the order of the sale be set-aside being illegal, unjustified. ( 4 ) NONE appears for the respondents, spc was also issued by Registered A. D. post on 12. 12. The submission of Mr. Garg, learned counsel for the appellant is tht the decree granted by the Trial Court be restored and the order of the sale be set-aside being illegal, unjustified. ( 4 ) NONE appears for the respondents, spc was also issued by Registered A. D. post on 12. 12. 2000 for their appearance on 13. 2. 2000 before this Court. Even after the service by Registered SPC no body is appearing for the respondents/defendants. ( 5 ) I have heard learned Counsel for the appellant and perused the record. ( 6 ) UNDER Section 2 of the Partition Act, the question whether property could conveniently be divided is primary consideration of parties. If any prayer is made under Section 2, it is open to the Court to make order for sale of the property. In this case since the parties have not agreed on the Commissioner's report for partition of the house, therefore, by reason of the nature of the property and looking to the inconvenient area of the house under division, the first Appellate Court was of the view that it be sold. In fact under the facts and circumstances of the case the Court may order for sale of the property and distribution of its proceeds which may be beneficial to the parties. The Trial Court has already determined the share of the parties and already granted a decreed for partition. If the parties are not in a position to agree on any mutual formula of partition or division of the house then under the facts and circumstances of the case the first Appellate Court was fully justified to order for sale and when property cannot be conveniently partitioned then Court has no option but to order for sale of the disputed property. It has been held by the Supreme Court in the case of R. Ramamurthi Aiyar (dead) by LRs. v. Rajeshwararao, that before order of sale it should only "appear" to the Court that it is not capable of division. Therefore, I do not find that the first Appellate Court was otherwise unjustified in passing a decree for the sale of the house. ( 7 ) ACCORDINGLY this appeal has no merit and is dismissed. v. Rajeshwararao, that before order of sale it should only "appear" to the Court that it is not capable of division. Therefore, I do not find that the first Appellate Court was otherwise unjustified in passing a decree for the sale of the house. ( 7 ) ACCORDINGLY this appeal has no merit and is dismissed. However, it is directed that the Executing Court may grant an option before directing sale of the house to both the parties, if they agree for any mutual formula of partition for their share in the house. No order as to costs. A decree be drawn up accordingly. Record be returned. Appeal dismissed. .