1 AO-307-10.sxw IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION Mhi APPEAL FROM ORDER NO. 307 OF 2010 WITH CIVIL APPLICATION NO. 400 OF 2010 Smt. Sonabai Tavanappa Jungale & Ors. ... Appellants (Org. Judgment Debtors) vs. Smt. Shushila Ramchandra Jungale & Ors. ... Respondents Mr. N.J.Patil,Advocate, for the appellants Mr.Manoj Patil,Advocate for the respondents Nos.1 to 4. CORAM: J.H.BHATIA,J. DATE : 20th July, 2011. P.C. 1. The learned Counsel for the parties make a statement that amicable settlement is not possible. Heard the learned Counsel. Perused the impugned judgment and order passed by the District Judge, Ichalkaranji in Regular Civil Appeal No.26/2008. 2. Special Civil Suit No.1/1982 was filed by the present respondents for partition and separate possession of certain agricultural lands and house property bearing City Survey No.119. The trial Court found that in City Survey No.119, 2 AO-307-10.sxw Tavanappa Jangale and Babu Jungale had 1/2 share share each. The plaintiffs and the defendants in the Special Civil Suit were the descendants and legal heirs of Tavanappa Jungale. The trial Court held that the plaintiffs in the suit i.e. present respondents had 3/8th share in the agricultural property. However, as their predecessor in title Tavanappa was having only 1/2 share in City Survey No.119, the plaintiffs could claim 3/8th share in the 1/2 share i.e. 3/16th share in the complete City survey No.119. Decree was passed accordingly. As per the decree, the Court Commissioner was to be appointed for effecting partition of the house property City Survey no.119 and to put the plaintiffs in possession of the 3/16th share in City Survey No.119. In the Final Decree proceeding No.14/2005 filed by the plaintiffs, the trial Court appointed a Commissioner and on the basis of the Commissioner's report, demarcated a portion of City Survey No.119 shown as 'A, B, C, D' in Map Exhibit 92. The area of that portion was 4.62 x 22.65 mtrs. equivalent to 104.05 sq. mtrs. The order was passed in the Final Decree Proceeding to partition the City Survey No.119 and put the plaintiffs/decree holders in possession of that portion. That order was challenged by the present appellants in Regular Civil Appeal No.26/2008. The appellate court noted that the proposed partition was not acceptable to the defendants/appellants. The plaintiffs/decree holders had suggested that the defendants could purchase the share of the plaintiffs at the rate of Rs.200/- per sq. ft. or could sell their share to 3 AO-307-10.sxw the plaintiffs at the same rate. However, none of these proposals were acceptable to the defendants. In view of these circumstances, the appellate Court directed the Executing Court to sell the property by a public auction and allow both the parties to participate in auction. That order is challenged in the present appeal by the original defendants. 3. The learned Counsel for the appellants contended that this is the only residential property of the defendants/appellants and, therefore, they cannot sell the share. According to them, because of financial constraints, they are not in a position to purchase the share of the plaintiffs at the rate of Rs.200/- per sq. ft. According to them, they are willing to purchase the share of the plaintiffs as per the Government valuation. They also contended that the plaintiffs are not entitled to 104.06 sq. mtrs. area because only1/2 of the Survey No.119 was the subject matter of the partition. 4. After hearing the learned Counsel for the parties, I find no substance in the contention of the defendants/appellants that the learned Civil Judge, senior Division, Kolhapur had committed an error in holding that the plaintiffs are entitled to 104.06 mtrs. That was the 3/16th share of the plot Survey No.119. If 1/2 share of Babu Jungale would be kept aside, remaining 1/2 belonging to 4 AO-307-10.sxw Tavanappa Jungale would be available for partition and in that the plaintiffs had 3/8th share. The total of City Survey N.119/11 is 557 sq. mtrs., therefore 3/16th share would be 104.06 sq. mtrs. and correctly determined by the Civil Court. 5. As the partition suggested by the Court Commissioner and accepted by the Civil Judge, S.D.,Kolhpur is not acceptable to the defendants, the alternative could be either the defendants could purchase the share of the plaintiffs or could sell their own shares to plaintiffs. The plaintiffs had suggested the price at Rs.200/- per sq. ft. but the defendants are not willing either to purchase at that price or to sell at that price. The defendants want to purchase the share of the plaintiffs as per the Government valuation, which may be much less. The plaintiffs are not bound to sell their share to the defendants as per the Government valuation. They can claim the market value of that property and which may be determined, if not by mutual understanding, by public auction. Therefore, as the mutual understanding was not possible, the appellate Court directed that the property be put to auction, giving option to both the parties to participate in the said auction. I do not find any illegality or irregularity in that order. That order is perfectly in the interest of justice. 6. Therefore, the Appeal stands dismissed. 5 AO-307-10.sxw However, it is made clear that in case both the parties agree to partition the property as per the order passed by the Civil Judge, Senior Division,Kolhapur in Final Decree proceeding, they may request the Executing Cort accordingly and in that case, the Executing Court may partition the property as per the order passed by the Civil Judge, Senior Division, Kolhapur in Final decree proceedings. 7. As the Appeal itself is dismissed, the Civil Application does not survive and stands disposed of accordingly. (J.H.BHATIA,J.)