GANPAT SINGH Vs. JAIRAM

JUDGEMENT

(1.) The appellant-plaintiff has preferred this appeal against the judgment and decree dated 18.11.1980 passed in Regular Appeal No. 49-A/79 by the Addl. District Judge, Dewas reversing the judgment and decree dated 28.9.1979 passed in C.O.S. No. 92-A/59 by Civil Judge Class II, Sonkatch, who passed the final decree for partition of the property.

(2.) The appeal was admitted for hearing on the following substantial question of law:

(3.) The Trial Court decreed the suit of the appellant-plaintiff for partition against which the respondent-defendants preferred first appeal and submitted that during the pendency of First Appeal No.182/69 the matter was compromised between the parties and the Commissioner was appointed for partition of the property. The Commissioner submitted his report on 14.9.1970 which is on record as Ex.P1 and the Ex. P2 is the map. After the memorandum of partition filed by the Commissioner the respondents/defendants objected that as per the situation of the house in dispute which is 84 ft. X 17ft. and if it is partitioned half:half then it will create inconvenience to the parties and in that case both the parties shall not be in a position to use the same because on road the width of the house is 17 feet. The first Appellate Court found that because both the parties are not on agreement on the question of partition of the house as suggested by the Commissioner, therefore, looking to the situation and condition of the house under the provisions of Section 2 of the Partition Act, 1893 it would be in interest of justice if the disputed house is sold and proceeds be distributed between the parties in accordance with their respective share in the property. The submission of Mr. Garg, learned Counsel for the appellant is tht the decree granted by the Trial Court be restored and the order of the sale be set-aside being illegal, unjustified.