IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD TUESDAY, THE TWENTY SIXTH (26TH) DAY OF JULY, TWO THOUSAND AND ELEVEN Present: HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition Nos.2641 and 2643 of 2007 Between: Maddineni Bhaskara Rao … Petitioner And: Maddineni Koteswara Rao & another … Respondents HON’BLE SRI JUSTICE G.V.SEETHAPATHY Civil Revision Petition Nos.2641 & 2643 of 2007 COMMON ORDER: CRP No.2641 of 2007 is directed against the order dated 02.01.2006 in IA No.1161 of 1998 in OS No.197 of 1978 on the file of the Principal Senior Civil Judge, Vijayawada, wherein the said application filed by the petitioner herein-plaintiff under Order 20 Rule 12 and 18 CPC seeking appointment of Advocate Commissioner to divide the plaint schedule property into four equal shares by metes and bounds and to allot two such share to the petitioner, was allowed issuing certain directions. 2.CRP No.2643 of 2007 is directed against the order dated 27.11.2006 in IA No.250 of 2006 in IA No.1161 of 1998 in OS No.197 of 1978 on the file of the Principal Senior Civil Judge, Vijayawada, wherein the said application filed under Order 47 Rule 1 CPC was allowed in part modifying the earlier order. 3. As both the revisions are inter-related, arising from the same suit, between the same parties, they are heard together and are being disposed of by this common order. Heard both sides. Perused the record. 4. The petitioner in both the revisions is the plaintiff. He filed suit OS No.197 of 1978 for partition of the plaint schedule property in to two equal shares. On 01.10.1986 preliminary decree for partition was passed. It is stated that the first respondent herein filed appeal in AS No.2879 of 1986 and the same was dismissed and LPA No.154 of 1997 was also rejected. Thus the preliminary decree has become final. Thereafter, the petitioner filed IA No.1161 of 1998 for passing of final decree after appointing an Advocate Commissioner to effect partition by metes and bounds. During the pendency of the said proceedings, the petitioner’s father Veeraraghavaiah died and the petitioner claimed to be the legatee under the Will dated 21.03.1984. In the preliminary decree, plaint A schedule property was directed to divide into four equal shares and the petitioner was allotted to one such share. The father of the petitioner, who was 2nd defendant in the suit, was also allotted 1/4th share. The petitioner therefore claims total half share in the plaint A schedule property by virtue of the Will of his father. The first respondent filed a counter in IA No.1161 of 1998 disputing the genuineness of the Will. The respondents further contended that the petition is barred by limitation. 5. The trial Court framed the following points for consideration. i. Whether this petition is barred by limitation? ii. Whether the petitioner is permitted to claim the share of his father in pursuance of the alleged Will said to have been executed by his father without filing a separate suit? iii. Whether the Will dated 21.03.1984 is true, valid and binding on the respondent? iv. Whether the Commissioner can be appointed to divide the properties without passing any Final decree? 6. On point No.1, the trial Court held that the petition is not barred by limitation. On point No.3 the trial Court held that the Will Ex.A.1 was executed by Veera Raghavaiah in favour of the petitioner in a sound and disposing state of mind; On point No.2, the trial Court held that in stead of directing the parties for fresh suit for declaration of genuineness of the Will, the Court can as well decide the same in the present proceedings itself. On point No.4, the trial Court held that the Commissioner can be appointed to conduct public auction. The trial Court issued various directions regarding the division of the properties. One of the directions issued by the trial Court is that the house in item No.4 of the plaint A schedule is found to be not feasible for division. An Advocate Commissioner was appointed to conduct public auction after enquiring the value of the building from the Sub Registrar’s office and also by local enquiry. The plaint schedule comprises four items i.e., item No.1 is an extent of Ac.3.00 of wet land, item No.2 is an extent of Ac.2.08 cents; item No.3 is an extent of Ac.0.10 cents of vacant site and item 4 is an extent of Ac.6.00 cents of dry land, all situated in Davajigudem village of Gannavaram Mandal. Aggrieved by the directions of the trial Court that the said item to be put to public auction on the ground that the physical division of the said property is not feasible, the present revision is filed. 7. Learned counsel for the petitioner would contend that earlier one Sri. I. Mallikarjuna Rao, Advocate was appointed and he took the assistance of one Sri T.Sobhanadri, a retired Executive Engineer and that he filed report dated 29.01.2004 along with the plan, valuing the super structures at Rs.7,43,000/- and in the said report, the Engineer has stated that only the super structures i.e., building consisting of ground and first floor are not divisible into four portions. It is stated that in the said report the mode of division and allotment is also suggested by proposing allotment of plots shown as A1, A2 in favour of the petitioner as legatee of his father and plots B1 and B2 in favour of 2nd respondent and Plots C1 and C2 in favour of first respondent and Plots D1 and D2 in favour of the petitioner, in his individual capacity. It is stated that the plot B consists of building with two floors and plot C consists of two small tiled houses. The Engineer valued the building at Rs.7,43,000/- and the tiled houses at Rs.50,000/-. Plots A and D are stated to be lying vacant. It appears that second Commissioner by name Smt. V.Shirisha Rani was appointed and she also filed a report to the effect that it is not possible to divide the super structures into four equal shares. The petitioner would therefore contend that only the alterative is either to divide the building into two shares or to auction the super structures between the parties inter se. The first respondent alone is stated to be contesting. The petitioner-plaintiff therefore offered to pay 1/4th value of the building in a sum of Rs.1,85,750/- to the first respondent and to take the entire building or the building may be allotted to the first respondent on his paying 3/4th value in a sum of Rs.5,57,250/-. 8. As seen from the impugned order, the first respondent was not willing to take the entire building or to give the same to the other side by payment of compensation. It can also be seen from the impugned order that it was suggested that the first respondent, who is residing in the house, may take entire house situated in Plot B by exchanging the same with site that may be allotted to him in item 4, but the first respondent did not agree for it. The trial Court therefore found no other alternative except to conduct auction of A, B, C and D portions of 4th item in open auction and appointed the Commissioner, Smt Sirisha Rani for the said purpose. 9. Admittedly, the four plots, A, B, C and D are all of equal value and the building situated in Plot B in which the first respondent is residing is not feasible for division into four equal shares. In stead of exploring the possibility of adjusting the equities by payment of compensation or otherwise, the trial Court has directed public auction of the entire item 4. If the offer made by one party to take the property and compensate the share of the other party by payment of compensation in money value or otherwise by exchanging some other property of equivalent value and when the other party was not agreeable for the same, the trial Court ought to have at the first instance explored the possibility of auction among the parties inter se, having regard to the fact that one of the parties is residing in the building, which is proposed to be subjected to public auction. It is also desirable that the auction is confined only to such portion of the property, the physical division of which is found to be not feasible and when the said portion is separable from the rest of the property. 10. In the circumstances, the impugned order insofar as it seeks to appoint Advocate Commissioner for conducting auction of item 4 is set aside and the matter is remitted to the trial Court for fresh consideration by exploring the possibility of adjustment of equities regarding the said item by giving necessary directions regarding payment of compensation or otherwise and in the event of such adjustments being not feasible, to consider the possibility of putting the said undivisible portion of item 4 to auction among the parties inter se at the first instance before directing any public auction. 11. In the result, CRP No.2641 of 2007 is disposed of accordingly as stated above. No order as to costs. 12. In view of the orders in CRP No.2641 of 2007 setting aside the impugned order and remanding the matter to trial Court for fresh consideration, CRP No.2643 of 2007 stands dismissed as infructuous. __________________ G.V.SEETHAPATHY, J Date: 26.07.2011 bss