Full Judgment
1. This appeal is directed against the judgment and decree dated 27-91985 passed by the Principal Civil Judge, Hubli confirming the order dated 5-12-1978 passed by the 11 Additional Munsiff, Hubli in F.D.P. No. 23 of 1978.
2. The facts of the case fall within a small ambit. The appellant Neelavva, obtained a decree for partition and separate possession of the suit properties in O.S. No. 390 of 1969. The property in question is a house in Hubli City. Her share has declared to be 1/ 15th. She filed F.D.P. No. 23 of 1978 for getting her share carved out in the house in question. A Commissioner was appointed and he reported that it was not possible to divide the property into 15 shares and in fact that the sharer who gets 1/15th share should take its value. Thereupon, the plaintiff-appellant filed I.A. VI, stating that the said I. A. was under Ss. 2, 3 read with S. 4 of the Indian Partition Act. After narrating what had transpired until the receipt of the Commissioner's report, she stated in 1. A. 6 that she undertakes as follows : -
'This applicant undertakes to purchase the shares of opponents Nos. 1, 3 and 4.'
'Further the order for partition of the properties under Ss. 2 and 3 be kindly passed.'
The II Additional Munsiff, Hubli, taking into consideration what was reported by the Commissioner, noted that defendants 2, 3 and 4 were not present and their counsel also were not present and directed the Commissioner to sell 1/15th share of the house property belonging to the plaintiff-appellant in an auction in between the parties to the suit, and realise the amount of 1/15th share from the highest bidder and credit the sale realisation amount.
3. The plaintiff-appellant preferred an appeal in the lower appellate Court evidently by virtue of the provisions of S. 8 of the Indian Partition Act. The lower appellate Court confirmed the order passed by the Munsiff.
4. When this second appeal came to be filed the office raised an objection as to the maintainability of the appeal as Regular Second Appeal. The objection was met by representing that the appeal was competent under the provisions of S. 8 of the Partition Act read with S. 100 of the Code of Civil Procedure.
5. It is no doubt true by I.A. VI the plaintiff-appellant has requested the Court to sell the shares of the other sharers. But she has expressed that she was willing to purchase the same and undertook to do so.
6. Section 2 of the Indian Partition Act empowers the Court to take steps to sell the property provided that is a request by a sharer as contemplated by the said provision. Under S. 3 of the Indian Partition Act, the Court can exercise its power only if there is a request under S. 2 and it reaches. the opinion that sale of the property and distribution of the proceeds would be beneficial to all the shareholders. The law on this aspect has been settled by the Supreme Court in Badri Narain v. Nil Ratan, : [1978]3SCR467 . In the very decision it has been held -
'..........that the request contemplated under, S. 2 of the Act is a sine qua non for directing a sale because such a request necessarily signifies his willingness to have his share converted into money, so that the co-sharers may, by means of the procedure provided in S. 3, buy them out.'
The request made by the appellant-plaintiff in I.A. 6 is to purchase the share of the other co-sharers. This request is as if it is made under S. 3 of the Partition Act under the impression that any of the co-sharers had made their request for sale under S. 2 of the Act. Therefore, I hold, and it is also so submitted by Mr. Joshi, that I.A. VI cannot be, under any stretch of imagination, said to fall within the ambit of S. 2 of the Act. When that is so, the order passed by the trial Court cannot be an order of sale under the provisions of Ss. 2 and 3 of the Act. Therefore, that order would not amount to a decree within the meaning of S. 8 of the Act. Hence it follows that the appeal before the lower Appellate Court was incompetent. In view of this reason it necessarily follows that this appeal also is incompetent.
Hence this appeal is dismissed and at the same time the so-called judgment and decree passed by the Principal Civil Judge, Hubli, in M.A. No. 9 of 1979 are set aside. The plaintiff-appellant is at liberty to seek out her remedies as available to her under law. No order as to costs under the facts and circumstances of the case.
7. Appeal dismissed.