KISHORE CHAND KAPOOR Vs. DHARAM PAL KAPOOR

JUDGEMENT

(1.) The special leave has already been granted. As elaborate arguments were made at the hearing of the special leave petition, we proceed to dispose of the appeal on merits.

(2.) The appeal has been preferred by the two plaintiffs and defendants 3 and 4 and is directed against the order of the Delhi High Court under S. 3(l), Partition Act, 1893.

(3.) The preliminary decree was passed by a learned single Judge of the High Court in terms of a compromise entered into between the parties. By the compromise decree the share of each party was declared as 1/6th in the suit property comprising 200 sq. yds. of land and a two-storeyed building standing thereon. Appellants 1 and 4, who were the plaintiffs, applied for passing a final decree under O. XX, R. 18, Civil P.C. A Commissioner for Partition was appointed by the High Court. According to the report of the Commissioner, the building was incapable of being divided by metes and bounds. The finding of the Commissioner was accepted by all the parties in the suit. The plaintiff-appellants filed an application for sale of the property by public auction under S. 2, Partition Act. Respondent 2, Smt. Savitri Devi Behl, who was defendant 2 in the suit, also made a similar application. Thus three of the parties in the suit, having in aggregate a 1/2 share in the property, applied for the sale of the property in question by public auction under S. 2, Partition Act. On the other hand, respondent 1 and appellant 2, who were respectively defendants 1 and 3, made two separate applications praying for the purchase of the shares of the other parties at valuation. On the said applications, the learned single Judge of the High Court directed that the property should be sold by public auction and the highest bid in that auction would determine the true market value of the property. On an appeal by defendant-respondent 1, the Division Bench of the High Court rightly set aside the said order and directed that the shares of the plaintiff-appellants and respondent 2 would be sold to either of the applicants, namely, appellant 3 and respondent 1. Being aggrieved by the said order of the Division Bench of the High Court, the appellants have preferred the instant appeal.