K.Subba Rao, J. - (1.) THIS Second Appeal raises a question of law, namely, whether the Court has power dehors the provisions of the Partition Act, 1893, (hereinafter referred to as the Act) to direct the sale of a joint family property and divide the proceeds between the members thereof.
(2.) THE suit out of which this appeal arise, was filed by the Appellant in the court of the Subordinate Judge, Rajahmundry, for partition of the plaint schedule property comprising of a house and a small adjoining site measuring 450 sq. yards. The Plaintiff and the 1st Defendant are both medical practitioners. The Plaintiff has been practising his profession at Achanta since 1925 and the 1st Defendant set up practice in the suit house at Rajahmundry in 1929. Both the courts found that the property, in its very nature, was not partible and was not capable of convenient or easy division. Whereas the learned Subordinate Judge directed the auctioning of the house between the Plaintiff and the 1st Defendant, the learned District Judge held that the auction should not be confined only to the parties to the suit. The Plaintiff has preferred the above appeal against that direction. Learned Counsel for the Appellant contends that, as neither of the parties requested the court to sell the house within the meaning of Section 2 of the Act, the Court had no jurisdiction to sell it but should have divided it into two parts and on the assumption that the court had such jurisdiction to sell it, it should have confined the auction to the brothers. Learned Counsel for the Respondent on the other hand argues that the court has power dehors the provisions of the Act to direct the sale of the property in such a way as to get the best price in a case where the property cannot be equitably and conveniently divided between the parties and divide the proceeds between them and this power is not confined to an auction between the members of the family but, if the circumstances demand, it may be thrown open to the public.
(3.) BEFORE we consider the question of law raised, we must discountenance the attempt made by the learned Counsel to reopen the concurrent findings of the courts below to the effect that the property was not capable of convenient or easy division. The finding is one of fact and there are no permissible grounds to reopen it. We accept the finding.;