1. This interlocutory application has come up before us for final disposal. The appeal herein is against the order dated 16th March, 1982 made by D. K. Sen, J. whereby the learned Judge directed the Commissioner of Partition to make a valuation of the shares of all the parties and to sell the shares to the shareholder offering the highest price above the valuation made by the Commissioner of Partition. There were also other directions.
2. The application made in the court below, out of which the present appeal arises, was made under Section 3 of the Partition Act by the appellant Somnath Bose.
3. Mr. T. C. Dutt, learned Advocate for the petitioner appellant urged that the said order made by the court below should be staved inasmuch as in an application under Section 3 of the Partition Actsuch order could not be made by the learned Judge. Either the application should have been dismissed or an order as prayed for should have been made. Mr. Nirmal Mitter, learned Advocate appearing for the respondents Nos. 1 and 2, the plaintiff in the suit, urged that the application which was made by his clients in the court below was not under S. 2 of the Partition Act, therefore the appellant had no right to make an application under Section 3 of the said Act. Mr. Mitter urged that his clients have only l/4th share in the property and an application for sale under Section 2 of the said Act could be made by a co-sharer having a moiety or above in the property. Therefore, Section 2 could have had no application to the application of his clients Mr. Mitter also urged that the said application was a combined application for sale of the property amongst the co-sharers failing which the same to be sold by public auction to outsiders. Therefore, Section 2 of the said Act could not strictly be applicable to the said application. Under Section 2 of the partition Act a share could have been sold only to an outsider by that was not the case here. Mr. Gour Roy Chowdhury, learned Advocate for the respondent No. 6, supported Mr. Mitter and submitted that his client did not agree to sale of the property to outsider nor did he request the court to make a sale to outsider. Mr. Dutt has costradicted such submission of Mr. Roy Chowdhury and contended that the respondent No. 6 also requested the court to sell the property to outsider as made by the respondents Nos. 1 and 2 in their application in the court below.
4. In the application made by Mr. Mitter's client for sale of the property an affidavit was used by Mr. Dutt's client along with the other co-sharers being his brothers and sisters representing the branch of Amarendra Nath Bose deceased who had 1/2 share in the property. The said affidavit was affirmed by Soumya Bose, the respondent No. 4 on behalf of his brothers and sisters including the appellant and also for himself. In paragraph 8 of the said affidavit it was stated and submitted that in the event the court was inclined to pass an order for sale of the property in the manner as prayed for such order should be limited to sale of the property amongst the parties to the suit and only upon failure thereof, such sale be made to outsiders.
5. It appears that the appellant and his brothers and sisters wanted sale of the property amongst the co-sharers which is the order that was made by the learned Judge in the order under appeal. In our opinion, the appellant cannot now turn round and take advantage of technicalities of law to ask for sale of the property to him at a valuation to be made by the court under Section 3 of the Partition Act. Prima facie it appears to us that the application made by Mr. Mitter's client Was not an application under Section 2 of the Partition Act as urged by Mr. Mitter. Whether the client of Mr. Roy Chowdhury supported the sale to outsider or not, is a disputed Question which cannot be decided now at this interlocutory stage.
6. In that view of the matter there will be no further orders on this application.
Costs: Cost in the appeal.
7. I agree.