( 1 ) THE lower appellate Court has held that the appeal preferred to it by the plaintiff was not maintainable and has not gone into the merits of the appeal. The suit was one for partition in which the plaintiff prayed for a division of the property into 3 equal shares and allotment of one share to him, defendants 1 and 2 being entitled to the other two shares. There was a preliminary decree in the suit passed on 12th November, 1947. The direction in the preliminary decree was that the suit properties as per the plaint schedule should be divided into three equal shares and the plaintiff be put in possession of one such share. The plaintiff applied in I. A. No. 572 of 1949 for the appointment of a commissioner for the division of the property into three equal shares and for the passing final decrees. After taking into consideration the report of the Commissioner, the trial Court passed an order that the property should be sold among the different sharers and the highest bidder was to be allotted the entire property, the others being directed to be content with their share of the price realised by the sale. If the property is capable of physical division and the plaintiff could be a

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