K N KRISHNAN Vs. K N NARAYANAN

JUDGEMENT

(1.) Challenging the Judgment and Decree in A.S. No. 8 of 1995 on the file of the Subordinate Judges Court, Koyilandy, this appeal is preferred by the first defendant. The appellant was the first defendant in O.S. No. 130 of 1987 on the file of the Munsiffs Court, Koyilandy. Against the Judgment and Decree in the said suit, the appellant filed A.S. No. 8 of 1995 before the Sub Court, Koyilandy. The suit was filed by the first respondent herein for partition of the plaint schedule property. A preliminary Decree was passed in the suit directing division of the property into 56 shares and by allotting 9/56 shares each in favour of the plaintiff and defendants 1 to 5. Defendants 6 and 7 were allotted 2/56 shares each. Thereupon the first respondent herein filed I.A. No. 420 of 1989 for the passing of a final Decree in terms of the preliminary Decree. An Advocate - Commissioner was deputed for division of the property. He submitted a plan and report on 24th April 1989 dividing the property into seven plots and allotting them to each of the parties. The Commissioner allotted Plot G in favour of the appellant herein. The plaintiff and defendants 2 to 7 filed I.A. No. 1737 of 1989 for setting aside the Commissioners Report and I.A. No. 1745 of 1989 requesting for the sale of the property in public auction as contemplated under S.2 of the Partition Act. The appellant herein filed I.A. No. 1458 of 1989 to remit the Commissioners Report and also to permit him to purchase the shares of other sharers. The Court below remitted the Commissioners plan and report directing that it should be specifically indicated whether the properties are capable of being divided by metes and bounds. As the Commissioners Report was remitted the other applications filed by the respondents were dismissed as premature. The Commissioner thereupon submitted a second report which was again remitted by the court below suo motu. Thereafter, the Commissioner filed a report on 10th February, 1994 stating that it would be difficult to have convenient enjoyment of each of the plots if the property is divided as shown in the first report.

(2.) On the basis of the report of the Commissioner, the plaintiffs and defendants 2 to 7 submitted that the property should be put to sale by public auction. But the appellant herein contended that he being the resident in the house situated in the property should be allowed to purchase the shares of other parties on payment of the value to be fixed by the court. The Trial Court after considering rival contentions passed an Order in I.A. No. 420 of 1989 on 13th June 1994 directing that the property shall be put to sale by public auction and by suspending the final Decree till such time. The above order was challenged by the appellant herein before this Court by filing CRP No. 1378 of 1994. The Civil Revision Petition was later removed from the file holding that the order under challenge is an appealable order as it has got the effect of preliminary Decree. Thereupon, A.S. No. 8 of 1995 was filed before the Subordinate Judges Court, Koyilandy against the Order dated 13th June 1994 in I.A.No. 420 of 1989. The appeal was dismissed affirming the view taken by the Trial Court. Against the said Judgment in A.S. 8 of 1995 and the Order of the Trial Court in I.A. No. 420 of 1989 in O.S. No. 130 of 1987 this second appeal is preferred by the first defendant.

(3.) The only question to be considered is whether the property can be put to public auction or whether the property can be allowed to be purchased by the appellant / first defendant as per the value fixed by the court. A preliminary Decree has been passed for division of the property into 56 shares and by allotting 9/56 shares each in favour of the plaintiff and defendants 1 to 5 and 2/56 shares each to defendants 6 and 7. On the basis of the preliminary Decree, I.A. No. 420 of 1989 was filed by the plaintiff for the passing of the final Decree. For division of the property, a Commissioner was deputed and the Commissioner has filed the report and plan dividing the property into 7 plots and allotting respective shares to the parties. The contention of the first defendant is that since he being the resident of the building he may be allowed to purchase the shares of the other sharers. Defendants 2 to 7 filed I.A. No. 1737 of 1989 for setting aside the Commissioners Report and I.A. No. 1745 of 1989 for sale of the property in public auction. The Trial Court dismissed both the petitions as premature and remitted the Commissioners Report and plan to the Commissioner. The Commissioner, thereupon, submitted a second report which was again remitted by the Court below suo motu. It is seen that on 10th February 1994, the Commissioner filed a report stating that it would be difficult to have convenient enjoyment if the property is divided as shown in the first report. Then the next question to be considered is whether the appellant herein can be permitted to purchase the shares of other sharers for the value decided by the Court. The contesting respondent resist the same. According to them, the property is to be put in public auction and if the appellant herein is desirous, he can also participate in the auction. S.2 of Partition Act, 1893 reads as follows: