REBBAPRAGADA RAMAPRASADA RAO Vs. REBBAPRAGADA SUBBARAMAIAH

JUDGEMENT

(1.) THIS Second Appeal raises a question of law, namely, whether the Court has power dehors the provisions of the Partition Act, 1893, (hereinafter referred to as the Act) to direct the sale of a joint family property and divide the proceeds between the members thereof.

(2.) THE suit out of which this appeal arise, was filed by the Appellant in the court of the Subordinate Judge, Rajahmundry, for partition of the plaint schedule property comprising of a house and a small adjoining site measuring 450 sq. yards. The Plaintiff and the 1st Defendant are both medical practitioners. The Plaintiff has been practising his profession at Achanta since 1925 and the 1st Defendant set up practice in the suit house at Rajahmundry in 1929. Both the courts found that the property, in its very nature, was not partible and was not capable of convenient or easy division. Whereas the learned Subordinate Judge directed the auctioning of the house between the Plaintiff and the 1st Defendant, the learned District Judge held that the auction should not be confined only to the parties to the suit. The Plaintiff has preferred the above appeal against that direction.

(3.) BEFORE we consider the question of law raised, we must discountenance the attempt made by the learned Counsel to reopen the concurrent findings of the courts below to the effect that the property was not capable of convenient or easy division. The finding is one of fact and there are no permissible grounds to reopen it. We accept the finding.