Judgment

DUTT, J. : - The special leave has already been granted. As elaborate arguments were made at the hearing of the special leave petition, we proceed to dispose of the appeal on merits.

2. The appeal has been preferred by the two plaintiffs and defendants 3 and 4 and is directed against the order of the Delhi High Court under S. 3(l), Partition Act, 1893.

3. The preliminary decree was passed by a learned single Judge of the High Court in terms of a compromise entered into between the parties. By the compromise decree the share of each party was declared as 1/6th in the suit property comprising 200 sq. yds. of land and a two-storeyed building standing thereon. Appellants 1 and 4, who were the plaintiffs, applied for passing a final decree under O. XX, R. 18, Civil P.C. A Commissioner for Partition was appointed by the High Court. According to the report of the Commissioner, the building was incapable of being divided by metes and bounds. The finding of the Commissioner was accepted by all the parties in the suit. The plaintiff-appellants filed an application for sale of the property by public auction under S. 2, Partition Act. Respondent 2, Smt. Savitri Devi Behl, who was defendant 2 in the suit, also made a similar application. Thus three of the parties in the suit, having in aggregate a 1/2 share in the property, applied for the sale of the property in question by public auction under S. 2, Partition Act. On the other hand, respondent 1 and appellant 2, who were respectively defendants 1 and 3, made two separate applications praying for the purchase of the shares of the other parties at valuation. On the said applications, the learned single Judge of the High Court directed that the property should be sold by public auction and the highest bid in that auction would determine the true market value of the property. On an appeal by defendant-respondent 1, the Division Bench of the High Court rightly set aside the said order and directed that the shares of the plaintiff-appellants and respondent 2 would be sold to either of the applicants, namely, appellant 3 and respondent 1. Being aggrieved by the said order of the Division Bench of the High Court, the appellants have preferred the instant appeal.

4. The position now is that appellant 3, Smt. Rain Dulari Dhawan, who made an application under S. 3(l), Partition Act, is no longer willing to purchase the property herself. Now it is only respondent 1, Shri Dharam Pal Kapoor, who is only willing to purchase the shares of the other parties so that the entire property may be allotted to him.

5. The suit has been pending since 1973 and, with a view to expediting the partition of the property, this Court without deciding the correctness or otherwise of the order of the Division Bench of the High Court, by its order dated April 13, 1986 appointed Shri O.P. Goel, a Government Valuer, to value the property in dispute and to submit his report on or before August 8, 1986. This Court, however, by its order dated August 4, 1986, rejected the report of the valuer since it related to the year 1978. By agreement of the parties, Col. R.K. Kohli (Retd.) was appointed a valuer of the property. Col. Kohli was directed to value the property as on the date of the order after giving notice to the parties and to submit the report to this Court within four weeks from that date. Col. Kohli has since submitted his report of valuation. It is stated in the report that the present market value (September, 1986) of the property is worked on "building and land method", that is, the depreciated value of the building plus the market value of the land as available to the owners in September, 1986. In the opinion of the valuer, this is the most appropriate method of valuation in this case.

6. The property is situate at R/845, New Rajendra Nagar, New Delhi, and, admittedly, defendant-respondent 1, Shri Dharam Pal Kapoor, is in possession of the same. It appears that after taking into consideration the size, situation