In a partition suit, the court has the authority to order the division of a property into equal shares, taking into consideration any obstacles to proper division.

In this suit for partition, the plaintiff was allotted with 1/3rd share, the first defendant was allotted with 1/3rd share and the 2nd defendant was also allotted with 1/3rd share from a property having an extent of 11.16 cents. The said property is situated in the heart of the Kozhikode city and it is a valuable property.

2. The first defendant, who is the first respondent herein, is a police officer, who is on leave, and he is gainfully employed in gulf. Being the eldest one, he denied shares from the property to his sole sister, who is the plaintiff, and his younger brother, who is the 2nd defendant. Finally, the sister had to approach the court through a suit in the year 2002 for partition. The 2nd defendant also travelled along with the plaintiff.

3. Even though the first defendant had forwarded several claims with regard to the property, all those claims were rejected and the preliminary decree became final. Thereafter, the plaintiff has been clamouring for the passing of the final decree. In the final decree proceedings Ext.C1(a) plan was initially prepared. The same was objected to. Thereafter, Ext.C2(a) plan also came. The same was also objected to. Consequently, the Munsiff's Court-I, Kozhikode had ordered for the auction of the property among the sharers for making the payment through owelty. An auction was conducted. It is a fact that the first defendant did not participate twice in the auction, and finally the auction was conducted and that was fixed in favour of the plaintiff whereby the plaintiff bid the property in auction for a total amount of Rs. 6,23,170/-. The said amount was deposited by the plaintiff and consequently a sale certificate was also issued.

4. Challenging the said order, the first defendant went up in appeal as A.S.No.155/2009 before the Subordinate Judge's Court, Kozhikode. The Subordinate Judge's Court, Kozhikode, by disregarding all the earlier proceedings, passed a curious judgment whereby the Subordinate Judge's Court has accepted Ext.C2(a) plan and a final decree was passed based on Ext.C2(a) plan. Plots A and A1 having an extent of 3.51 cents has been allotted to the plaintiff, plots C and C1 is allotted to the share of the 2nd defendant, and Plot B in Ext.C2(a) plan is allotted to the share of the first defendant. For equalization of the shares, the first defendant was ordered to pay an amount of Rs. 4,30 990/- to the plaintiff and an amount of Rs. 87,430/- to the 2nd defendant.

5. Aggrieved by the aforesaid final decree and judgment passed by the lower appellate court in A.S.No.155/2009, the plaintiff along with the 2nd defendant have come up in second appeal. This Court admitted this second appeal on the following substantial questions of law raised in the memorandum of appeal:

"(1) Whether the lower appellate court was justified in law in setting aside the order passed by the trial court directing the auction of the property among the shares in view of the reports of the Commissioner that the property cannot be divided in equal shares among the shares?

(2) Whether the court is not bound to accept Ext.C3 report that the Commissioner has stated that the property cannot be divided in 3 equal shares?"

6. Heard the learned counsel for the appellants and the learned counsel for the respondent.

7. The learned counsel for the respondent has claimed that the respondent is entitled to have the equitable relief of getting the building situated in the property. At the same time, the learned counsel for the appellants has pointed out that the respondent is a police officer and he is on leave, and he has been working in the gulf for the last many years. The said fact is evident from the impugned judgment passed by the lower appellate court, which shows that the first defendant had even preferred the appeal through his power of attorney holder. Even though the learned counsel for the respondent has argued that the first defendant has no building of his own and therefore, he is in dire need of th