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Judgment
Honourable Mr. Justice M.D. Shah
This appeal is filed against the judgment and order dated 23.11.2011 passed by the learned City Civil Court, Ahmedabad in Civil Suit (CCC) No. 3476 of 1975. That the appellant filed Civil Suit No. 3476 of 1975 against the present respondents and others for declaration of title and possession of the property being Plot no. 10 situated at Christian Society, Maninagar, Ahmedabad being Municipal Census No. 79/12 to 79/16 bearing Revenue Survey No. 311 of Kokhra Mahemdabad. The respondent also filed Civil Suit No. 516 of 1976 for the same property. The learned City Civil Court, Court No. 19, Ahmedabad passed common judgment and order dated 31.7.1981 and disposed of both the suits by passing the following final order:
Papers to be sent to Commissioner for taking accounts for dividing the suit property by metes and bounds and for putting each plaintiff and the defendants no. 3 and 4 in possession of his or her respective 1/4 share of the suit property. The C.T.A. To act in accordance with the provisions of Indian Partition Act. The plaintiffs of both the suits to appear before the C.T.A. Within two months from the date of this judgment and C.T.A. to submit his Report to this Court for final decree within two months thereafter.
Parties of both the suits bear their own costs. Preliminary decree to be drawn in terms of this order. Original judgment to remain on the file of Civil Suit No. 3476 of 1975 and copy to be placed in Civil Suit No. 516 of 1976.
The said judgment and order was challenged by filing first appeals which were dismissed by this Court vide order dated 4.5.2001.
Thereafter, the matter was referred to the office of CTA and it was numbered as Reference No. 57 of 1981 and 58 of 1981 for further proceedings.
The Assistant Commissioner for Taking Accounts for The High Court and The City Civil Court, Bhadra, Ahmedabad passed the following order on 22.2.2011:
The suit immovable property is not partiable by metes and bound as per shares of the parties.
As discussed in Para-17, it is suggested that, it would be more beneficial to all the sharers, if the suit immovable property is ordered to be sold in Public Auction wherein, parties should also be allowed to bid and from the amount realized by way of sale after deducting the necessary expenditure of Auction Sale, Plaintiff No. 1, Plaintiff No. 2/A to 2/D, Defendant No. 3 and Defendant No. 4 each be given 1/4th of the amount from the net sale proceeds.
As discussed in Para-18 to 20, on taking accounts from and to each party, it is hereby reported that :-
(i) Plaintiff No. 2/A to 2/D are liable to pay Rs. 1,25,000/- to Plaintiff No. 1.
(ii) Defendant No. 3/1 is liable to pay Rs. 1,25,000/- to Plaintiff No. 1.
(iii) Defendant No. 4 is liable to pay Rs. 1,25,000/- to Plaintiff No. 1.
The question of cost, interest and court fees will be decided by the Hon''ble Court.
Thereafter, after receiving the report and after inviting objections, the learned City Civil Court passed by the following final order, which is impugned in this appeal.
(1) THE report of the Assistant Commissioner for Taking Accounts is partly accepted that the suit property is to be auctioned in public wherein the parties are allowed to bid in auction and the amount realized by way of sale after deducting necessary expenditure of auction sale.
(2) THE plaintiff No. 2/A to 2/D, defendant Nos. 3 and 4 are ordered to be given 1/4th share of the amount from the net sale proceeds but after considering the question of the costs incurred by the plaintiff no. 1 etc., while final decree will be passed.
Heard learned advocates for the parties.
It is submitted by learned advocates for both the parties, on instructions, that the impugned order may be modified to the following extent:
The suit property may be sold inter-se amongst the parties by taking bids from each of the parties before the Commissioner of taking Accounts on a date fixed before him, probably before 15th December, 2012 in presence of all the parties. On getting the bids, one who offers highest bid, the property impugned will be sold to him with all appurtenance and the consideration amount shall be then divided amongst the parties, as per their share declared and accordingly, highest bidder will pay to each one of the co-sharer, the consideration amount, as per their respective shares and accordingly, the appeal may partially be allowed by modifying the judgment and decree of the trial Court, as agreed and appeal may accordingly partially allowed and disposed of.
In view of the above, this appeal is partly allowed. The impugned order is modified to the following extent.
The suit property will be sold inter-se amongst the parties by taking bids from each of the parties before the Commissioner of taking Accounts on a date fixed before him on or before 15th December, 2012 in presence of all the parties. On getting the bids, one who offers highest bid, the property impugned will be sold to him with all appurtenance and the consideration amount shall be then divided amongst the parties, as per their share declared and accordingly, highest bidder will pay to each one of the co-sharer, the consideration amount, as per their respective shares. As the main appeal is disposed of, civil application also stands disposed of accordingly.
Decree be drawn accordingly.