Maintainability of the petition by co-sharer.

Srinivasan, J.

1. The controversy in this second appeal relates to the allotment of half share in premises No. 56, Cathedral Road, Madras comprising 3 grounds and 1538 sq.ft., of land and a building thereon with a plinth area of 3876 sq.ft.

2. One Rajaram Pillai filed the suit, out of which these proceedings arise, for partition and separate possession of one half share and for recovery of a sum of Rs. 500 for his share of collections of rent and for an account of the income from the property against his son V. Ramamoorthi alias R.M. Kumar. A few months after the filing of the suit, the plaintiff sold his undivided half share in the property to one Puram Prakasa Rao under a registered sale deed dated 16-9-1964 for a sum of Rs. 20,000. A preliminary decree was passed on 31.3.1966 granting one half share to the plaintiff and a sum of Rs. 500 for his share in rental collections. The defendant filed an appeal A.S. No. 399 of 1966 in this Court and during the pendency of the appeal, the plaintiff died on 10-11-1972. The purchaser of his undivided share viz., Puram Prakasa Rao was brought on record as the legal representative of the deceased plaintiff on 22-3-1973. On the same day, the appellant withdrew the appeal as a result of which the preliminary decree passed by the trial Court stood confirmed. Puram Prakasa Rao filed applications in March, 1973 for passing of final decree, appointment of receiver and for ascertainment of mesne profits. The defendant, Ramamoorthi alias R.M. Kumar died on 10-8-1973 and his legal representatives, who are the appellants in this second appeal, came on record. Puram Prakasa Rao also died and his legal representatives were brought on record as plaintiffs 3 to 6. They assigned their rights under the decree in favour of the respondents herein by registered deed of assignment dated 27-9-1978. On the strength of the assignment deed, the respondents filed I.A. No. 22753 of 1978 for recognising them as assignee decree holders and the application was allowed on 13-11-1979.

3. The respondents filed I A. No. 2452 of 1979 for appointment of a Commissioner to effect a division of the property by metes and bounds and for directing the Commissioner to hold an enquiry into mesne profits regarding their half share. It is stated by learned Counsel for the respondents that at the insistence of the office of the City Civil Court, a separate application was filed for dividing the property into two equal halves and allotting one half to the petitioners and the other half to the respondents therein. That application was numbered as I.A. No. 2499 of 1980. Obviously, the earlier application I.A. No. 2452 of 1979 was confined to the relief of ascertainment of mesne profits.

4. A Commissioner was appointed for the purpose of effecting a division and with the permission of the court, he engaged the services of a qualified engineer for taking measurements and drawing a plan to the scale. The Commissioner recorded the evidence of the tenants in the suit property and submitted a report. He had also filed the report of the Engineer with the memo of valuation attached thereto. According to the said reports, the value of the land was Rs. 4,52,122 and the value of the superstructure was Rs. 1,15,008. The Commissioner divided the property into two portions, one abutting the road and another situated in the rear with a passage from the road. The passage leading to the rear is on the east of the building having a width of 12 ft in the southern end and 10 ft 9 inches in the northern end thereof. In effect, the Commissioner had demarcated the entire building as one portion and the vacant land situated on the rear side of the building with the passage leading thereto as another portion. As regards the two portions, the report of the Commissioner reads thus:

Taking into consideration the characteristic features of the building and the passage leading to the rear, I feel that the front portion marked with redline can conveniently be sep