Mitter, J. - (1.) This is an appeal from an order rejecting a prayer for grant of leave to the Appellants jointly to buy the shares of the Plaintiffs -Respondents in premises No. 5, Nilmoni Dutt Lane, Calcutta, at the valuation made by the Commissioner of Partition appointed in the suit.
(2.) The suit was filed by Ram Charan Seal and Abhoy Charan Seal as Plaintiffs. They are step -brothers. The Defendants are Durga Charan Seal, a brother of Abhoy Charan Seal and Bhabatarini, mother of Abhoy and Durga. The admitted shares of the parties in the said premises are as follow: Plaintiff Ram Charan Seal : 18/60th share Plaintiff Abhoy Charan Seal : 17/60th share Defendant Durga Charan Seal : 17/60th share Defendant Bhabatarini : 8/60th share. The property has an area of 1 cottah, 2 chattacks, 4 sq. ft. and is a partly two and partly three storeyed structure with one stair -case. According to the plaint the property could not be partitioned by metes and bounds and a prayer was made for sale of the premises and division of the sale proceeds among the parties in proportion to their shares. According to the petition which formed the basis of the application of the Appellants it was contended by the Plaintiffs at the time of the hearing of the suit on February 21, 1964, that by reason of the nature of the property the same could not be conveniently partitioned amongst the parties physically by metes and bounds according to their respective shares whereupon the parties agreed that the commissioner of partition to be appointed should sell the same. As the rights of the parties hinge upon the decree passed it is necessary to set forth the following relevant portions thereof: This cause coming on this day in the presence of the Advocates for the parties and the Plaintiffs through their Advocate not pressing the claim for accounts and upon the parties agreeing that the property in suit cannot be partitioned and that the commissioner of partition to be appointed herein shall sell the said property, it is declared that the shares of the parties are as follows.... And it is ordered and decreed with the consent of the parties that a partition be made of the said premises with the appurtenances into sixty equal parts or shares and that a commission do issue directed to Mr. K.G. Paul, Engineer, as a commissioner of partition and survey or....And it is further ordered and decreed that the said commissioner do sell the said premises by public auction to the highest bidder provided the said commissioner shall consider that a sufficient sum has been offered and that for the purpose of such sale the said commissioner surveyor do fix a reserve bidding and it is further ordered and decreed that the parties respectively be at liberty to bid for and purchase the same the parties being at liberty to set off their respective shares in the sale proceeds pro tanto against the purchase -money.
(3.) The commissioner of partition valued the property at Rs. 22,651 on June 16, 1964. Before, however, he could put the property up to sale the Defendants took out a chamber summons for the relief mentioned. They claim to have a preferential right to the property on the ground that the mother has all along been residing there and that the family deity is also installed in the said property and is being worshipped by her and that she bears a great sentimental value for the property. Moreover it is said that the first Plaintiff has acquired a property at Kadamtola, Sodepur, in the name of his wife and the second Plaintiff has acquired a property at Kasi Nath Dutt Road, Baranagore, but the Applicants have no alternative accomodation where they can shift to in case the property be sold to a stranger.;