SALAMBIN AMAR DOWDI Vs. HUSEINBIN SALAM DOWDI

JUDGEMENT

(1.) This is an appeal filed by the original plaintiff whose suit being Civil Suit no. 47 of 1972 was decreed by the learned Civil Judge Junior Division Dharampur with costs holding that the appellant-plaintiff was entitled to 1/7th share in the immovable property and to 1 share in the movable property. But he observed that it would not be possible to divide 1/7th and 1/2 shares in the immovable and movable properties and hand them over to the plaintiff and the actual partition of both the properties would cause delay and expenses and so the plaintiff be given alternative remedy and therefore he decreed the amount of Rs. 1 0 as claimed by the plaintiff. He further ordered that the plaintiff may recover the decretal amount from the person and properties of the defendants with 6 per cent interest from the date of decree till realisation.

(2.) Being dissatisfied with that order of the trial Court awarding a specific amount of Rs. 1 0 instead of giving share in the properties the plaintiff-appellant approached the District Court Bulsar at Navsari by way of Regular Civil Appeal no. 3 of 1978 and the learned District Judge by his order dated 15-3-1980 dismissed the appeal with costs. Hence this second appeal.

(3.) The main dispute which is raised in this second appeal is that after having come to the conclusion about the definite share of the plaintiff whether the Court had erred in refusing to pass a decree for actual partition and separate possession in favour of the appellant-plaintiff on the ground of monetary compensation of Rs. 1 0 and whether it would be sufficient ? The second ground was whether it was not obligatory on the Courts below to have followed the provisions of the Partition Act 1893 if it came to the conclusion that the properties were such which could not be partitioned especially when the Partition Act has provided for such an eventuality ? The third ground was whether the lower appellate Court not erred in construing the provisions of Order 20 Rule 18 of the Code of Civil Procedure as empowering the lower appellate Court to pass an alternative decree for compensation ?