( 1 ) TWO applications under the Partition Act, 1893, have led to this Regular First Appeal which has been filed under Section 8 of the Partition Act read with Section 96 of the Code of Civil Procedure.

( 2 ) THE facts giving rise to the two applications can first be shortly stated. Shrimati Radha Rani was the plaintiff in a suit for partition in which she claimed half share in the property in question being No. 6-7 ward No. XI, Matia Mahal, Delhi. The defendants were Shri Faquira andshri Amrit Lal. By a preliminary decree dated 28th August, 1982, the trial Court held that the plaintiff was entitled to a half share in the property and the defendants were entitled to a one-fourth share each. A Local Commissioner was appointed who found that several persons were in occupation of the property including the plaintiff Shrimati Radha Rani and Shri Amrit Lal. The report was to the e:fect that the property cannot be conveniently partitioned.

( 3 ) BEFORE dealing with the two applications which form the subject- matter of the order under appeal, it is convenient to note an order passed on 28th August, 1981, by the trial court. It is noted therein that a portion of the property is occupied by defendant No. I and lftkhar Ahmed appears to be in possession of a mezzanine. The Court ordered that the property should be sold by an auction amongst the co-owners only and parties were directed to appear on 4th September, 1981, for giving their bids. This order appears to have been passed without any application or request by the parties.

( 4 ) THEN the two applications mentioned above were filed. Defendant No. I stated he may be allowed to buy the share of defendant No. 2 at a valuation to be fixed by the court. The plaintiff also wanted to purchase the share of defendant No. 2. The plainti. f also applied stating that she be given the whole property at a valuation to be fixed by the Court.

( 5 ) BOTH applications were rejected by the trial court holding that there was no application under Section 2 of the Act and, therefore, no application could be filed under Section 3. There is little doubt the order of the Court is right in so far as the applications are concerned but, learned counsel for the appellant contends that this does not mean that the Court can on its own direct an auction between the co-owners as was done by the order dated 28th August, 1981, and hence, the necessity of the present appeal.

( 6 ) ON hearing the learned counsel, we find that there has been a complete missunderstanding of the procedure to be followed under the Partition Act, 1893, in the particular case Section 2 of the Act is as :

"2 Power to Court to order sale instead of Division in partition suits.- Whenever in any suit for partition in which, if instituted prior to the commencement of this Act, a decree for partition might have been made, it appears to the court that, by reason of the nature of the property to which the suit relates, or of the number of shareholders therein, or of any other special circumstances, a division of the property cannot reasonably or conveniently made, and that a sale of the property and distribution of the proceeds would be more beneficial for all the shareholders, the Court may, if it thinks fit, on the request of any of such shareholders interested individually or collectively to the extent of one moiety or upwards, direct a sale of the property and a distribution of the proceeds. "this section clearly states that the Court can order a sale if one is demanded by the shareholders interested individually or collectively to the extent of hall" the property or more. Thus, the Court can only order a sale if requested to do so by the owners of 50 per cent share in the property or more and cannot order the same on its own. There seems to be a general belief that property subject to a partition suit can be sold even without any such a request, in this connection, it may be recalled that the Partition Act of 1893 was passsd onl