1. F.A.O.(RO)No.14/2020 and O.P.(C)No.1547/2019 are filed by plaintiffs in O.S.No.137/2016 on the file of the Munsiff Court, Muvattupuzha.
Plaintiffs in O.S.No.139/2016 before the same court are authors of F.A.O(RO) No.18/2020 and O.P. (C) No.1544/2019.
2. The plaintiffs in both suits are almost the same. The defendant in each suit is different. Both suits for partition were decreed and preliminary
decrees for partition and separate possession were passed on the same day by the Munsiff Court, Muvattupuzha.
3. In O.S.No.137/2016, there are three schedules namely 'A', 'B' & 'C' in which ¾ share was allowed in favour of the plaintiffs and remaining ¼
share was allowed to the defendant, who is widow of one 'Binu'. In O.S.No.139/2016, there are two schedules namely, 'A' and 'B' in respect of
which, half share was declared in favour of plaintiffs and remaining half share to the defendant, who is the son of 'Binu'.
4. The preliminary decrees in both suits have become final and the plaintiffs in the suits filed final decree applications in their respective suits before
the Munsiff court. During the pendency of the final decree application in O.S.No.137/2016, plaintiffs filed I.A.No.330/2019 seeking an order for sale
of the decree schedule properties contending that 'A', 'B', 'C' schedule items were not capable of physical division, since the items were entirely
covered by buildings therein. This was opposed by the defendant.
5. Likewise in O.S.No.139/2016 also, a similar petition for conducting sale under the provisions of the Partition Act, 1893(for short, 'the Act') was filed
in respect of 'A' and 'B' schedule properties which also the defendant in the suit stoutly opposed. As per separate orders passed, I.A.Nos.330/2019
and 329/2019 were allowed on the same day, accepting the report of the Advocate Commissioner that properties were not capable of physical division
because of lie of the buildings in each of the items of properties.
6. Being aggrieved by the orders passed on 17.07.2019, the plaintiffs filed A.S.Nos.44/2019 and 43/2019 against the respective orders of the court
below. The appellate court was not pleased with the report of the Advocate Commissioner and the finding that in the report, the properties were
incapable of physical division. It expressed its opinion that a clear picture about the possibility or otherwise of the physical division of the properties
could be explored, only upon the items being surveyed with the aid of plan and parties heard thereafter. Both orders were set aside and matter was
remitted back to the court below for fresh consideration of the issue.
7. Challenging the respective remand orders in A.S.Nos.44/2019 and 43/2019, respectively F.A.O(RO) Nos.14/2020 and 18/2020 were filed.
8. It is an admitted fact that the items of properties in both suits were outstanding on lease in favour of the third parties, who were conducting toddy
shop in the buildings. The period of lease expired and there was a move on the side of the plaintiffs for extending the period of lease allowing the
lessee to continue the business. Respective defendant in each suit was not inclined to consent to the renewal of lease. Following the resistance of the
defendant in the respective suits, the decree holders in O.S.No.137/2016 filed I.A.No.683/2019 seeking permission of the court for conducting toddy
shop business on a rent being fixed by the court. This application was heavily opposed by the defendant. Similar application as I.A.No.679/2019 was
filed in O.S.No.139/2016 by the decree holders which also the defendant in that suit opposed. The court below accepted the argument of the
defendant that a co-owner cannot be compelled to consent for renewing lease against his will. Both petitions were dismissed by separate orders in the
respective suits on 04.04.2019. Challenging these orders, the plaintiffs in O.S.Nos.137 & 139/2016 filed O.P.(C)Nos.1547/2019 and 1544/2019
respectively.
9. I heard the learned counsel for the appellants/petitioners and respondents.
10. So far as orders issued by the court below refusing permission to renew the lease are concerned, I do not find any illegality in the impugned orders
dated 04.04.2019. It is trite law that a co-owner cannot be compelled to consent to a lease arrangement or its renewal against his own will. Court
cannot step into the shoes of the unwilling co-sharer and order renewal of lease. Situation may be different when a receiver is appointed for the
property to take care of the income and profits with liability to account for the same. That position does not arise in the present cases before me.
Therefore, orders dated 04.04.2019 dismissing I.A.Nos.683 & 679/2019 are confirmed.
11. The learned counsel for the appellants in F.A.O.(RO)Nos.14 and 18/2020 has pointed out that the impugned orders dated 10.01.2020 of the Sub
Court, Muvattupuzha, are quite illegal since the orders challenged before that court were not appealable under law.
12. After hearing both sides, I am satisfied that the first appellate court wrongly interfered with orders which were not appealable under law. Under
the Partition Act, 1893, only those orders for sale made by court under Sections 2, 3 or 4 are deemed to be decrees within the meaning of Section 2 of
the Code of Civil Procedure,1908. The orders impugned before the first appellate court were not orders of sale coming within the scope of any of the
Sections aforesaid as enumerated in Section 8 of the Partition Act. The appellants in my view have to work out the remedies before the appropriate
forum prescribed by law. The learned counsel for the respondents also did not dispute that the orders challenged before the first appellate court were
non appealable. Since impugned orders were passed in appeals which were not maintainable under law, they are illegal and liable to be set aside. In
other words, the first appellate court erred in interfering with the orders in I.A.No.1227/2019 in I.A.No.330/2019 in O.S.No.137/2016 and
I.A.No.1228/2019 in I.A.No.329/2019 in O.S.No.139/2016 dated 17.07.2019.
In the result, F.A.O.(RO)Nos.14 & 18/2020 are allowed setting aside impugned orders in A.S.No.43 & 44/2019 dated 10.01.2020. O.P.(C)Nos.1544
& 1547/2019 are dismissed. Parties would suffer their respective costs.
All pending interlocutory applications will stand closed.
