UMRAO SINGH Vs. UMRAO SINGH

JUDGEMENT

(1.) THE appellants in this Court were the plaintiffs in a suit for partition. THEy owned between them 8-19th Section of a certain house. THE defendant owned the remaining l-19th share. In their plaint at paragraph 4 the plaintiffs stated that, regard being had to its accommodation, the partition of the house in suit would spoil the house altogether so that it would not "at all remain comfortable for residential purposes." Hence the plaintiffs asked the Court under Section 2 of the Partition Act (IV of 1893) to order a sale of the house. In reply the defendant raised alternative pleas. In the first place he alleged that a partition of the house by metes and bounds could be effected to the mutual convenience of the parties, provided it were effected in a certain way. In the alternative he pleaded that, if the Court held that the house could not reasonably or conveniently be partitioned and was prepared to accept the plaintiffs prayer for an auction-sale, then the defendant claimed to exercise his-right under Section 3 of the same Act to buy the plaintiffs share at a valuation. At a later stage it is quite clear that the defendant was prepared to withdraw, and did withdraw, his objection to the plaintiffs allegation that the house could not conveniently be partitioned. He elected to abide by his alternative claim to purchase at a valuation to be fixed by the Court. THE Court proceeded accordingly to cause a valuation to be made, obtained a report from Commissioners, heard objections to that report and fixed the value of the plaintiffs share at Rs. 6,000. It has framed its decree accordingly, permitting the defendant to purchase at this price. In the memorandum of appeal before us it is contended, firstly, that the Court below has misinterpreted Sections 2 and 3 of the Partition Act. We think that on the contrary the Court below has properly applied those sections according to their plain meaning. THE suggestion that the Court could not legally take the action which it did, without first taking evidence and recording an affirmative finding to the effect that the house could not conveniently be partitioned and that its sale by auction would be more beneficial to the share-holders, comes with an ill-grace from the plaintiffs-appellants. THEy are, as a matter of fact, trying to make it a grievance that the Court accepted their own allegations of fact to be correct. Moreover, as we have already pointed out, the defendant in a subsequent pleading had virtually accepted the same position. Finally it has been urged upon us that, at a later stage of the trial, when the plaintiffs discovered what the result of the proceedings was likely to be, they asked permission of the Court to withdraw from their suit, with leave to bring a fresh suit, and that this request was refused. Under the circumstances the Court below exercised a sound discretion in refusing to allow this application. Matters had reached a stage at which the defendant was entitled to the benefit of the claim which he had put, forward under Section-3 of the Partition Act, and in any case the application for withdrawal filed by the plaintiffs does not satisfy the conditions laid down by Order XXIII of the Code of Civil Procedure. In the memorandum of appeal before us there is no definite plea that the finding of the Court below, fixing the value of the plaintiffs share at Rs. 6,000, is incorrect. Even if we can understand the paragraph of the memorandum of appeal before us as suggesting such a plea, it seems to us that the finding of the Court below is in accordance with the weight of the evidence. THE result is that this appeal fails and we dismiss it with costs.