A property not capable of partition due to practical constraints may be sold under the Partition Act, despite objections from co-owners regarding involuntary sale.

JUDGMENT :

H. P. SANDESH, J.

1. This miscellaneous second appeal is filed against the judgment and decree dated 02.01.2023 passed in R.A.No.122/2020 allowing the appeal and setting aside the judgment and decree dated 03.03.2020 passed in F.D.P.No.16/2012 and remanding the matter to the Trial Court to proceed in accordance with the Partition Act, 1893 (‘the said Act’ for short).

2. The factual matrix of the case is that respondent No.1 had filed a suit in O.S.No.192/2009 for partition of the suit schedule property. The Trial Court after adjudication of the same, passed the judgment and decree declaring that the plaintiff is entitled for 5/6^th share in the plaint schedule property and it shall be divided into six equal shares by metes and bounds. On the basis of the judgment and decree, the plaintiff preferred petition for final decree to allot 5/6^th share in the plaint schedule property by appointing an advocate Commissioner with the assistance of ADLR Surveyor. In the final decree proceedings, respondent Nos.1 to 4 appeared through their counsel, but they did not file any objections. The Court appointed the Court Commissioner to effect partition and on the basis of the preliminary decree, the Court Commissioner filed his report stating that there is already a house and workshop existing in the schedule property. If the property is to be divided into 1/6^th share of the respondents, it would result in demolition of workshop and house causing hardship to the petitioner, who is having 5/6^th share in the plaint schedule property. Hence, the Court Commissioner returned the warrant unexecuted. The Court after hearing the arguments of the learned counsel for the petitioner on I.A.No.1 under Sections 2 and 3 of the Act, allowed and permitted the petitioner to purchase the undivided 1/6^th share of the respondents as per valuation. Subsequently, the respondents appeared in final decree proceedings and submitted that they want their share as per the preliminary decree. The Trial Court after rejecting the earlier Commissioner's report appointed another Court Commissioner to divide the schedule properties into six equal shares and allot 5/6^th share to the petitioner and 1/6^th share to the respondents as per the preliminary decree.

3. Subsequently, the Court Commissioner visited the property and measured the property with the assistance of ADLR Surveyor and filed the report before the Trial Court on 02.03.2020 and the petitioner filed his objections to the Commissioner report. The Trial Court having considered the same, framed the point for consideration whether the petitioner has made out sufficient ground to allot the shares as per the preliminary decree? The Trial Court after hearing the arguments of both the parties, allotted 5/6^th share to the petitioner i.e., 0-15.58 cents of land out of available extent in the schedule property. The portion of share consisting of residential building, one shop premises, one vehicle parking shed, two water tanks and one workshop premises is identified and coloured in yellow colour by the Commissioner. The Commissioner also identified 0-03.12 cents of land coloured in green colour i.e., 1/6^th share allotted to the share of the respondents and final decree was drawn.

4. Hence, an appeal was filed in R.A.No.122/2020. The First Appellate Court having considered the grounds urged in the appeal, formulated the point whether the appellant is entitled to claim that the suit schedule property be sold under Section 3 of the Partition Act, 1893 and whether the impugned order of the learned Trial Court dated 03.03.2020 passed in FDP No.16/2012 calls for an interference? The First Appellate Court having heard the respective learned counsel and considering the material av