NEELAVVA Vs. IRAVVA

JUDGEMENT

(1.) This appeal is directed against the judgment and decree dated 27-9-1985 passed by the Principal Civil Judge, Hubli confirming the order dated 5-12-1978 passed by the II 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 I/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 I.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.