Research › Search › Judgment

Calcutta High Court · body

2005 DIGILAW 413 (CAL)

PREMCHAND PODDAR v. JAGANNATH PODDAR

2005-06-30

BHASKAR BHATTACHARYA, RAJENDRA NATH SINHA

body2005
BHATTACHARYA, J. ( 1 ) THIS first appeal is at the instance of some of the defendants in a suit for partition and is directed against the Judgment and decree dated 27th August, 1977 passed by the learned Sub-ordinate Judge, purulia in Title Suit No. 33 of 1965 thereby passing a final decree in a partition suit after accepting Commissioner's report. ( 2 ) MR. Mukherjee, the learned Advocate appearing on behalf of the appellants has at the very outset raised a preliminary objection contending that this Court at this stage cannot take up hearing of this appeal as the appeal is not ready as regards service. ( 3 ) ACCORDING to Mr. Mukherjee, a Division Bench of this Court by order dated February 6, 2004 having allowed not only an application for addition of parties but also another application for substitution being CAN no. 1774 of 2004, the added persons and the substituted heirs are required to be served with the notice of this appeal and so long those additional parties are not served, this appeal cannot be said to be ready as regards service. ( 4 ) MR. Mahato, the learned Advocate appearing on behalf of the plaintiff/respondent has vehemently opposed the aforesaid submissions of mr. Mukherjee. Mr. Mahato points out that this Court by order dated 16th august, 1989 dispensed with the service of notice of appeal upon all the respondents except the respondent No. 1, who was the plaintiff in the Trial court, on the prayer of the appellants as the other respondents were defendants in the suit who have not preferred any appeal and the suit was decreed ex parte against all other defendants than the defendant Nos. 15 to 17. ( 5 ) SUBSEQUENTLY, the defendant Nos. 6, 26, 28, 31, 37 (a), 38 and 46 (c) having died their heirs were brought on record on the basis of application for addition of parties though no application for substitution was filed within the period of limitation. 15 to 17. ( 5 ) SUBSEQUENTLY, the defendant Nos. 6, 26, 28, 31, 37 (a), 38 and 46 (c) having died their heirs were brought on record on the basis of application for addition of parties though no application for substitution was filed within the period of limitation. ( 6 ) SINCE the service of notice of appeal upon all the defendants who did not contest in the Trial Court have already been dispensed with, on the death of some of those defendants although their heirs have been added or substituted, there was no necessity of fresh service upon those heirs as their predecessor did not contest the proceedings in the Trial Court nor had they preferred any appeal challenging the final decree. We, therefore, find that there was no necessity of fresh service upon those heirs who have been subsequently brought on record when service of notice upon their predecessors had been dispensed with. ( 7 ) WE, thus, overrule the said objection raised by Mr. Mukherjee. ( 8 ) IN the suit, a preliminary decree was passed declaring 1/5th share of the plaintiff, 1/5th share of defendant Nos. 4 to 14 and similar share of defendant Nos. 15 to 25. Defendant Nos. 26 to 31 were also declared to be 1/5th share-holder and defendant Nos. 45 to 46 (b) were found to have 1/5th share. The said preliminary decree has attained finality. At the time of passing of such decree, the learned Trial Judge directed the parties to amicably partition the property by meets and bounds within 40 days and in default, parties were given liberty to apply for appointment of Pleader Commissioner for effecting partition in terms of the preliminary decree. The learned Trial judge further held that the existing possession and convenience of the parties should be maintained as far as practicable at the time of allotment of shares and possession of subsequent purchasers from any of the co-sharers should be shown against the selling co-sharer. Reclamation made by any of the co-sharers should also be taken into consideration as far as practicable according to the said preliminary decree. ( 9 ) AS there was no amicable partition pursuant to such preliminary decree, the plaintiff alone applied for commission and the learned commissioner after investigation submitted his report allotting properties in favour of plaintiff. Reclamation made by any of the co-sharers should also be taken into consideration as far as practicable according to the said preliminary decree. ( 9 ) AS there was no amicable partition pursuant to such preliminary decree, the plaintiff alone applied for commission and the learned commissioner after investigation submitted his report allotting properties in favour of plaintiff. It may be mentioned here that none of the defendants applied before the Commissioner to separate his share according to the preliminary decree. ( 10 ) IT appears from record that defendant Nos. 16,17,43 to 45 gave objection against the report of the Pleader Commissioner. In view of such objection, the learned Trial Judge referred such objection to the learned pleader Commissioner for giving supplementary report, if any. Accordingly, the Pleader Commissioner gave supplementary report and those defendant nos. 16,17, 43 to 45 again gave objection against the supplementary report given by the Commissioner. ( 11 ) THE learned Trial Judge on consideration of the objections raised by those defendants overruled those objections and accepted the report of the Commissioner and thereafter on a different date passed final decree in terms of the Commissioner's report. ( 12 ) BEING dissatisfied, some of the defendants have preferred the present first appeal. ( 13 ) FYLR. Mukherjee, the learned Advocate appearing on behalf of the appellants contended that the learned Trial Judge having accepted the report of the Commissioner by Order No. 75 dated 30th July, 1977 erred in law in passing the final decree on a subsequent date without giving further notice to the parties. According to Mr. Mukherjee, the Court ought to have fixed another date in terms of Order 9 of the Code of Civil Procedure. ( 14 ) IN this case, the learned Trial Judge having already passed a preliminary decree after complying with the formalities required under Order 9 of the Code and such decree not having been challenged by any of the parties, no question of further application of Order 9 arises after the present appellants have participated in the final decree proceedings and raised objections against the report submitted by the Commissioner. It appears from record that the Commissioner gave report on his proposed allotment and against such report objection was raised by some of the defendants and the learned Trial Judge on hearing the parties overruled such objection and accepted the report. It appears from record that the Commissioner gave report on his proposed allotment and against such report objection was raised by some of the defendants and the learned Trial Judge on hearing the parties overruled such objection and accepted the report. Once such report is accepted, there was no necessity of further fixing any date for hearing of the suit in accordance with the provisions contained in Order 9 of the Code. We, thus, find no substance in the aforesaid contentions of Mr. Mukherjee. ( 15 ) MR. Mukherjee also relied upon two decisions of the Supreme court, one in the case of Vijay Kumar Madan and Ors. v. R. N. Gupta Technical education Society and Ors. , reported in (2002)5 SCC 30 and the other, in the case of Bhanu Kumar Jain v. Archana Kumar and Ors. , reported in (2005)1 scc 787 : (2005)1 WBLR (SC) 500 in support of his submission that the court could not pass final decree on a different date without giving an opportunity to his clients to make further submission. After going through those decisions we find that principles laid down in those decisions cannot have any application in a case of final decree in a suit for partition when the suit has already been decreed in preliminary form and thereafter, final decree has been passed after accepting Commissioner's report by giving opportunity of hearing to the parties who raised objection against such report. Those parties cannot claim further opportunity of hearing. We, thus, find that those decisions cannot have any application to the fact of the present case. ( 16 ) ON merit, we find that against the report of the Commissioner defendant Nos. 16,17,43 to 45 gave objection and their objection was that the plaintiff could not be allotted with the lands over which they had no possession. They contended that in the preliminary decree it was specifically stated that the respective possession of the parties should be mentioned and the plaintiff being not in possession of the allotted lands, the commissioner made the allotment in violation of the preliminary decree. Such objection was overruled on the ground that plaintiff was in possession of the lesser quantity of land in comparison to his share and to harmonise the share of the plaintiff, lands though not in possession of the plaintiff were required to be allotted in his favour. Such objection was overruled on the ground that plaintiff was in possession of the lesser quantity of land in comparison to his share and to harmonise the share of the plaintiff, lands though not in possession of the plaintiff were required to be allotted in his favour. It appears from the objection given by those defendants that their contention was that the land allotted to the plaintiff ought to have been allotted either to defendant Nos. 20 to 24 or defendant nos. 15, 16 and 17. It may not be out of place to mention here that those defendants did not raise any objection against the allotment in favour of the plaintiff. So far some of the plots allotted to the plaintiff which were in possession of defendant Nos. 43 to 45 are concerned, we are of the view that those two defendants were in possession of excess lands having regards to their share and as such, some lands in their possession must be allotted to the plaintiff for the purpose of matching the share of the parties and as such, the learned Commissioner did not commit any illegality in allotting those lands in favour of the plaintiff. No evidence was adduced on behalf of the objectors showing that they improved those lands or raised any construction over those portions or that those are valuable land in comparison to the other lands involved in the suit. Therefore, merely because some of the lands allotted to the plaintiff were not in his possession, such fact cannot invalidate the report of the Commissioner when such allotment was necessary for the purpose of giving just share of the plaintiff. ( 17 ) WE, thus, find that the learned Trial Judge rightly overruled the objection raised by those defendants. ( 18 ) MR. Mukherjee further contended that the Commissioner acted illegally in separating the share of the plaintiff alone without making separate allotment of the other parties to the litigation according to the share declared in the preliminary decree and on that ground alone the final decree is liable to be set aside. In support of such contention, he relies upon a Division bench decision of this Court in the case of Bijoy Krishna Sadhukhan v. Gangadhar Sadhukhan and Ors. , reported in AIR 1988 Cal 430 . In support of such contention, he relies upon a Division bench decision of this Court in the case of Bijoy Krishna Sadhukhan v. Gangadhar Sadhukhan and Ors. , reported in AIR 1988 Cal 430 . In the said case, by the preliminary decree the Court declared 1/4th share of the plaintiff and the three defendants. Subsequently, the defendant No. 3 applied for appointment of the Commissioner and the Court appointed the commissioner to partition the property in terms of the preliminary decree. The Commissioner, however, allotted only the share of the defendant No. 3 and the plaintiff preferred appeal against such decree contending that the commissioner erred in law in separating the share of the defendant No. 3 alone when the suit for partition was filed by the plaintiff for separating his share as he felt inconvenience in holding the joint property. In such a situation, the Division Bench held that the Commissioner erred in law in not separating the share of the parties when the Court directed him to partition the property in accordance with the preliminary decree. In the case before us, it is the plaintiff who alone prayed for separating his share and the other defendants did not pray before the Commissioner to split their share. In such circumstances, the Commissioner did not commit any illegality in not demarcating the share of the other parties than that of the plaintiff. We, thus, find that the said decision is not an authority for the proposition of law that a Commissioner is duty bound to separate the shares of all the parties although they do not want to divide their shares inter se. ( 19 ) ON consideration of the entire materials on record, we, thus, find that the appellants have failed to prove that there is any inequitable distribution in the matter of allotment of the property and there is no reason to interfere with the order passed by the"tearned Trial Judge accepting the report of the Commissioner. ( 20 ) THIS appeal is, thus, devoid of any substance and is dismissed with costs which we assess at 300 Gms.