( 1 ) THIS is an appeal filed by the original plaintiff whose suit being Civil Suit no. 47 of 1972 was decreed by the learned Civil Judge Junior Division Dharampur with costs holding that the appellant-plaintiff was entitled to 1/7th share in the immovable property and to 1 share in the movable property. But he observed that it would not be possible to divide 1/7th and 1/2 shares in the immovable and movable properties and hand them over to the plaintiff and the actual partition of both the properties would cause delay and expenses and so the plaintiff be given alternative remedy and therefore he decreed the amount of Rs. 1 0 as claimed by the plaintiff. He further ordered that the plaintiff may recover the decretal amount from the person and properties of the defendants with 6 per cent interest from the date of decree till realisation.

( 2 ) BEING dissatisfied with that order of the trial Court awarding a specific amount of Rs. 1 0 instead of giving share in the properties the plaintiff-appellant approached the District Court Bulsar at Navsari by way of Regular Civil Appeal no. 3 of 1978 and the learned District Judge by his order dated 15-3-1980 dismissed the appeal with costs. Hence this second appeal.

( 3 ) THE main dispute which is raised in this second appeal is that after having come to the conclusion about the definite share of the plaintiff whether the Court had erred in refusing to pass a decree for actual partition and separate possession in favour of the appellant-plaintiff on the ground of monetary compensation of Rs. 1 0 and whether it would be sufficient ? The second ground was whether it was not obligatory on the Courts below to have followed the provisions of the Partition Act 1893 if it came to the conclusion that the properties were such which could not be partitioned especially when the Partition Act has provided for such an eventuality ? The third ground was whether the lower appellate Court not erred in construing the provisions of Order 20 Rule 18 of the Code of Civil Procedure as empowering the lower appellate Court to pass an alternative decree for compensation ?

( 4 ) THE suit was filed for partitioning immovable property bearing Nagar Panchayat no. 524 situated in Tasia/falia Dharampur Dist. Bulsar claiming it to be of joint ownership and possession of the parties. The movable properties were as mentioned in the Schedule to the plaint and they were one big wooden cupboard with class another big wooden ordered by the trial Court and jurisdiction and not that he had made an alternative prayer for claiming that amount. The plaintiff merely mentioned therein that the immovable property mentioned in Schedule I to the plaint has its market price of Rs. 4 200 and therefore the value of his 1/7th share is Rs. 600. 00ands therefore Court-fee of Rs. 60. 00 was paid for this. He has further mentioned that the movable properties mentioned in Schedule II to the plaint have the market value of Rs. 1 400 and therefore the value of his 1/2 share is Rs. 700. 00 and accordingly Court-fee of Rs. 70. 00 is paid. The total Court-fee of Rs. 130. 00 is paid. It is therefore the contention that this was only for the purpose of Court-fee while the actual prayer in paragraph 10 of the plaint was for dividing his share and giving exclusive possession thereof and any other relief according to the partition Act.

( 5 ) IT is therefore the submission of Mr. Sanjanwala that both the Courts below committed an error in exercising the jurisdiction to evaluate the properties by giving his share by calculating at Rs. 1 0 only. His argument centered round the provisions of Order 205 Rule 18 of the Code of Civil Procedure 1908 (hereinafter referred to as the Code) and the Partition Act 1893 (hereinafter referred to as the Act) and submitted that it was not open for the Courts below firstly to direct the plaintiff to lose the right in the properties and to be satisfied by getting the monetary value only and secondly that t