SREEDHARAN Vs. BHASKARAN

JUDGEMENT

(1.) DEFENDANTS 1 to 4 in O. S. No. 245 of 1956 of the munsiff's Court of Kozhikode have filed this civil revision petition for quashing the order dismissing their petition for review of the order accepting the Commissioner's report in the case. The suit was one for partition of property consisting of a plot of land, 54 cents in extent, and a three-storied building therein. The three plaintiffs are entitled to three shares, defendants 1 and 2 to one share each, defendants 3 and 4 one share jointly and defendants 5 and 6 to one share jointly. A preliminary decree was passed in the suit and the commissioner who was deputed to divide the property reported that it was not possible to divide the same into seven shares. Notice of the filing of the report was given to counsel and the case was posted for filing objections. Though there were several postings for this, defendants 5 & 6 alone objected claiming part of the land as their share. The learned Munsiff directed that the share of defendants 5 & 6 should be given from the western side of the property and the rest of the land and building should be sold in auction. Thereafter defendants 1 to 4 filed a petition for reviewing the order. The petition was dismissed by order dated 17 1961 which has given rise to this civil revision petition.

(2.) THE ground on which review was sought was that the trial court did not advert to the provisions of S. 2 of the Partition Act and that the court had no jurisdiction to pass an order for sale as sharers owning a majority of the shares had not requested sale of the property. S. 2 is as follows: "2. Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the Court that, by reason of the nature of the property to which the suit relates, or of the number of the shareholders therein or of any other special circumstance, a division of the property cannot reasonably or conveniently be made and that a sale of the property, and distribution of the proceeds would be more beneficial for all the share-holders, the Court may, if it thinks fit, on the request of any such share-holders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds. "

(3.) IN view of the above conclusion it is unnecessary to consider whether the ground urged is a valid one for review.