When there is no request as provided under section 2 of Partition Act, whether Court is competent to direct sale of the property by auction among the sharers or by public auction? Whether for an equitable and fair division of the property dehors of Partition Act court can direct sale of the property or is it mandatory to allot the property to one of the sharers with a direction to pay compensation to the other sharers if it is found that the property cannot be reasonably and conveniently be divided. These are the questions to be answered in this writ petition filed under Article 227 of the Constitution of India.

2. The facts are not complicated. O.S. 224/1999 was instituted before sub court, kozhikode for partition and separation of share of plaintiffs. As per the preliminary decree, it was found that plaint schedule property is available for partition and it is to be divided into 26 equal shares and plaintiffs are entitled to one share. So also defendants 5 to 8 together are entitled to one share. Plaintiffs filed I.A.761/2003 for passing a final decree in accordance with the preliminary decree. A Commission was appointed to divide the property. Commissioner submitted report stating that property cannot be divided into 26 equal shares as it is a residential plot having an extent of 15 cents comprised in survey No.253 of Kalathinkunnu Village of Kozhikode and the residential building and its appurtenant land and it is not feasible or possible to divide the property into 26 shares. Defendants 5 to 8 then raised a claim that they have been residing in the building for the last 60 years and therefore the property is to be allotted to them. It was resisted by the other sharers including plaintiffs contending that defendants No.5 is owning a double storied residential building and allotment of the property to defendants 5 to 8 is not equitable. Learned Sub Judge found that the property cannot reasonably or conveniently divided and conducted an enquiry. As per order dated 12.2006 court directed defendants 5 to 8 to produce the title deed relating to their property having a double storied residential building owned by 5th defendant making it clear that on their failure to produce the document, property will be put to auction among the sharers and if so all the sharers would get their share in the sale proceeds. Finding that it is not feasible or possible to divide the property into 26 equal shares and defendants 5 to 8 did not produce the document as directed, as per order dated 112.2006, learned Sub Judge held that defendants 5 to 8 are not entitled to allotment of the property to themselves and the property is to be auctioned among all the sharers and posted the case for auction on 10.1.2007. On that day defendants 5 to 8 as one group and all others as another group participated in the auction. Defendants 5 to 8 offered to bid for a value of Rs.49,50,000/-. But the other group consisting of plaintiffs and other defendants offered to bid for Rs. 50,00,000/-(fifty lakhs only). Learned Sub Judge accepted that offer being the highest and directed to deposit the amount by 12.2007. The amount as directed was deposited. By that time defendants 5 to 8 filed this petition to quash Ext.P1 to P3 orders and to direct the trial court to value the property and to allow petitioners to retain the property on payment of the value of the shares to the other sharers declaring that petitioners are entitled to retain the schedule property in which they have been residing uninterruptedly so as to preserve the residential house falling into the hands of strangers.

.3. Learned Senior counsel Sri. Govindh K. Bharathan appearing for petitioners relying on the commentaries of partition Act by BAsu (Fourth Edition) argued that Partition Act (hereinafter referred to as the Act) was enacted to preserve the family property falling into the hands of strangers and when it is shown that petitioners have been residing in the residential building for the la