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2005 DIGILAW 668 (CAL)

Birendra Nath Saha v. Chandana Saha

2005-10-07

KALYAN JYOTI SENGUPTA

body2005
Judgement ORDER :- Both the aforesaid applications have been taken out by the defendants Nos. 1, 2 and 3 being the heir, heiress and/or successor-in-interest of one Sri Narendra Nath Saha since deceased. The first mentioned application was taken out for setting aside of the decree dated 7th December, 2000 passed in the aforesaid partition suit and also for relief of declaration that the report prepared by the Commissioner of Partition is void and cannot be acted upon. The second mentioned application (G.A. No. 1461 of 2005) was taken out for setting aside of the report of the Commissioner of Partition and for appointment of a new Commissioner of Partition to prepare a report in terms of the agreement annexed with the plaint. 2. The plaintiff aforesaid filed the suit for partition in respect of a building and premises No. 35, Acharya Prafulla Chandra Road, Kolkata which is a building of several storeys, praying for a preliminary decree declaring that the plaintiff is entitled to 1/5th share in the suit property and also for a final decree as per the said share of the plaintiff and the defendants in the suit property declared on the basis of agreed allotments in an agreement being Annexure-A to the plaint. As none of the defendants appeared, the said suit was decreed in preliminary form by His Lordship, the Honble Justice Amitava Lala (as His Lordship then was) on 16th February, 1999. Relevant portion of the said decree which is relevant for the purpose of the suit is set out hereunder : "Since there is no objection with regard to share and property, I apply the principle of Order 8, Rule 5 of the Code of Civil Procedure and pass a preliminary decree in terms of Prayer (a) of the plaint. Ms. Swapna Mukherjee, an Advocate of this Court, member of the Bar Library Club, is appointed Commissioner of Partition. Commissioner of Partition is appointed in the property who will walk over the property and take necessary steps for the purpose of partition by metes and bounds by way of dividing and effecting partition of the said property as per the agreement in terms of the undivided 1/5th share". 3. Thereafter the learned Commissioner of Partition pursuant to the said preliminary decree took steps for furnishing returns of the Commission to the Court. 3. Thereafter the learned Commissioner of Partition pursuant to the said preliminary decree took steps for furnishing returns of the Commission to the Court. In course of her Commission work, it appears, she engaged a surveyor and valuer and obtained a report from him and then she finally submitted her returns of Commission in the Court on or about 28th August, 2001. At that stage no exception was taken to the report of the Commissioner. On or about 7th December, 2002 the learned trial Judge having accepted the report of the Commissioner passed a final decree. Thereafter an application was made by the present petitioner and defendants Nos. 1, 2 and 3 for setting aside of the said decree and the said application was dismissed by the learned single Judge on 1st August, 2003. The petitioner preferred appeal against the order refusing to set aside the said decree dated 7th December, 2002. 4. The appeal was disposed of by an order dated 8th December, 2003 and thereby set aside order dated 1st August, 2003 and remanded the application for setting aside of the decree, for fresh hearing. 5. Pursuant to the said order of the Appeal Court I heard out the first mentioned application on 23rd March, 2005. After hearing the parties I stayed operation of the final decree and granted liberty to the petitioner to file affidavit-in-opposition to the application for final decree and also granted liberty to make suitable application for taking exception to the report of the learned Commissioner of Partition. 6. By my said order I directed the plaintiff to supply the copies of the report of the Commissioner of Partition and applications for final decree. 7. Pursuant to the aforesaid leave the second mentioned application has been taken out by the petitioner for taking exception to the report. No affidavit-in-opposition could be filed against the application for final decree as there has been no formal application. It is an admitted position and the same is borne out by the records also that on the basis of the oral application the report of the Commissioner was accepted by the learned trial Judge and without having any formal application final decree was passed. 8. It is an admitted position and the same is borne out by the records also that on the basis of the oral application the report of the Commissioner was accepted by the learned trial Judge and without having any formal application final decree was passed. 8. From the aforesaid facts and circumstances of this case there pose two questions: (1) Whether any formal application for final decree is required to be made basing on the report of the Commissioner of Partition if no exception is made to the report of Commission. (2) Whether the report of the Commissioner of Partition is required to be set aside or not, on the plea taken in the portion. 9. I think if the second point is considered and decided first, then the decision on the first point will be a matter of course. So, I take up the second point for decision. 10. I invited the learned Counsel to address on second question. 11. Mr. Das, Senior Counsel appearing for the petitioner, contends that the report of the learned Commissioner is bad in law, rather void by reason of the fact that she has exceeded her authority by not following the direction and guidelines given by the learned trial Judge in the preliminary decree. He contends that there has been no dispute regarding the shares of the parties. Further, scheme of partition and/or allotment of the shares and the division of the property by metes and bounds were worked out long before filing of the suit by entering into an agreement amongst the then shareholders in 1994. The plaintiff and the defendants except the defendants Nos. 1, 2 and 3 are the signatories to the said agreement. The present petitioners predecessor-in-interest viz. one Narendra Nath Saha was also the signatory to the said agreement. This agreement of the parties has been accepted by the plaintiff himself by making averment in the plaint and the learned trial Judge while accepting this averment has asked the Commissioner of Partition to consider the same and to effect division of the properties in accordance with the scheme of the said agreement. This agreement of the parties has been accepted by the plaintiff himself by making averment in the plaint and the learned trial Judge while accepting this averment has asked the Commissioner of Partition to consider the same and to effect division of the properties in accordance with the scheme of the said agreement. He has taken me through the contents of the report of the Commissioner and also of the agreement scheming partition, and submitted that the learned Commissioner in her own way has totally ignored, in substance, the agreement of the parties, consequently ignoring the direction of the Court. She being the Officer appointed by the Court, cannot act in such manner. From reading of some portions of the report of the Commissioner the aforesaid fact will be apparent. 12. The learned Commissioner has incorrectly recorded that the petitioner did not accept the agreement, rather his client duly objected to the Commissioner for ignoring the said agreement. 13. He further contends, there has been no application for final decree, as such, the petitioner was not in a position to take exception to the report of the said Commissioner of Partition at earlier stage. In support of his submission he has relied upon the decisions reported in 1990 (1) CLJ 234 and AIR 1988 Cal 430 . 14. Mr. De, learned Counsel, while supporting the decree as well as report of the Commissioner submits that there cannot be any challenge against the final decree as the final decree is nothing but acceptance of the preliminary decree and none of the parties has preferred any appeal against the preliminary decree. As such, question of setting aside of the final decree does not arise. He has drawn my attention to the report of the Commissioner and contends that she has considered the agreement of the parties and it was found by her upon discussion and hearing of the parties that the same was not workable in its entirety. The learned Commissioner has been given absolute discretion by the Court to proceed with the Commissioner for division and allotment of the shares in accordance with the declaration made in the preliminary decree. The shares have been allotted on the basis of the admitted shares of the properties. Even before filing of the partition suit some portion of the properties have been sold out. The shares have been allotted on the basis of the admitted shares of the properties. Even before filing of the partition suit some portion of the properties have been sold out. As such, the agreement of the parties cannot be given effect to. This would be an impracticable situation. Moreover, he contends, as rightly reported by the learned Commissioner, that the agreement for division and allotment does not cover all the properties by metes and bounds in its entirety. One portion has only been considered. He further submits that no formal application for passing final decree is required. He has drawn my attention to the provision of Order 20, Rule 18, sub-rule (ii) of the Code of Civil Procedure. Therefore, it is open for the Court and it has power to pass decree in partition suit in such manner as it thinks fit. 15. He further submits that it is open for the Commissioner also to ignore the agreement of the parties. In support of his contention, he has relied upon the decisions of the Supreme Court reported in AIR 1977 SC 292 and XXIX CWN 229 : (AIR 1925 Cal 425). 16. The contention of the learned Counsel are attentively heard and the material placed before this Court is also examined by me with care. As I have observed already that the decision on legality, validity and acceptability of the report of the Commissioner of Partition will largely clinch the issue, and controversy substantially, between the parties herein. In order to find out this aspect the preliminary decree has to be read carefully in order to understand its scope. In my reading the preliminary decree has declared the shares of the parties and at the same time the learned Commissioner of Partition was asked to take necessary steps for partition by metes and bounds and by dividing and effecting partition of the said property as per the agreement, in terms of undivided 1/5th share. So it was incumbent upon the learned Commissioner to give effect, to the agreement between the parties relied on by the plaintiff himself and annexed to the plaint. As far as the division and allotment of the properties are concerned, I have seen the agreement annexed thereto. In the first schedule the entire suit property has been described. So it was incumbent upon the learned Commissioner to give effect, to the agreement between the parties relied on by the plaintiff himself and annexed to the plaint. As far as the division and allotment of the properties are concerned, I have seen the agreement annexed thereto. In the first schedule the entire suit property has been described. In the Second Schedule the allotment of the portion of the suit property has been provided in favour of one Narendra Nath Saha, since deceased, being the predecessor-in-interest of the present petitioners. In the third schedule the division and allotment of the suit property has been provided in favour of one Birendra Nath Saha, plaintiff, likewise the fourth Schedule, 5th Schedule and 6th Schedule provide for mode of allotment and division of the suit properties in favour of Sailendra Nath Saha, Manik Lal Saha, Ratan Lal Saha being the defendant Nos. 4, 5 and 6. 17. I have carefully gone through the report of the learned Commissioner of Partition. She has examined and considered undoubtedly, the agreement of the parties. Mr. Das has rightly said that learned Commissioner in reality has ignored rather brushed aside the mode of allotment made in the agreement altogether. I find substance in the contention of Mr. Das also that the learned Commissioner could not afford to ignore the agreement, consequently she has rather acted contrary to the dictum and mandate of this Court given in the preliminary decree. It will appear from the language of the preliminary decree as above, that she was not asked merely to consider and examine the agreement. Rather she was asked to effect the mode of division and allotment as mentioned in the agreement. The way the learned Commissioner has proceeded as reflected in her report in my opinion is unsupportable as she being misdirected has brushed aside the effect of the agreement. Some relevant portion of her report will make it clear how she has ignored the preliminary decree, consequently the agreement. The way the learned Commissioner has proceeded as reflected in her report in my opinion is unsupportable as she being misdirected has brushed aside the effect of the agreement. Some relevant portion of her report will make it clear how she has ignored the preliminary decree, consequently the agreement. "............In the agreement there was no attempt or proposal for partition of the entire suit properties excepting the portion already sold out as detailed above in metes and bounds according to the undivided 1/5th share of each of the parties and the proposals given in the agreement which was never translated into action cannot be taken into account for allotment of the shares in the different floors of the suit premises to the parties according to the respective 1/5th shares. So I thought it fit and proper to allot the respective allotment to the parties with due regard to their exclusive possession of different portions without imposing my aforesaid approach of the matter to the parties, I offered the parties to choose their allotments from the scheme of partition made by me with the assistance of the surveyor and valuer". 18. The learned commissioner was not given power by the Court to examine whether the agreement was acted upon or not by the parties. When the Court has directed her to partition by metes and bounds in terms of the agreement then she should not have acted contrary to, and/or frustrated the direction of the Court. This exercise of the Commissioner to put in mild language is an act of impropriety if not contempt of Court. In all fairness if she had found that an agreement was not workable nor acted upon, then she should have asked the parties to approach the Court for clarification. 19. Another portion of her report which I cannot resist my eagerness to quote is as follows : "...........In view of the discussions made above with regard to the aforesaid agreement which has been completely discarded by me insofar as the proposal for allotment made therein are concerned, I make the following allotment to the parties from the scheme of partition giving due regard to the present possession of the parties." 20. It is strange thing how she could afford to discard an agreement, which was accepted and directed to be implemented to, by the Court. It is strange thing how she could afford to discard an agreement, which was accepted and directed to be implemented to, by the Court. Wherefrom the learned Commissioner got the strength to ignore decree and order under law is not known to me. All that I can comment is that it is not an act of a person of an ordinary prudence or intelligence. As such she has not acted in the way the Court wanted. Mr. Dey however, submits on the strength of a decision of this Court reported in 29 CWN 229 : (AIR 1925 Cal 425) the agreement can be ignored if the partition is sought to be effected properly. 21. In this case factually for the sake of convenience of the possession, parties themselves agreed to have allotments, however, such agreement was pleaded in the plaint but the Court passed a decree in preliminary form without having such plea. In that context it was held by Their Lordships that : "The partition for convenience of possession such as has been found by the learned subordinate Judge does not appear to have been suggested and the pleadings of the contesting defendants; in any case that by itself cannot stand in the way of a decree. For partition so long as it is not found that it was in conformity with the shares of the respective parties." It is thus clear the agreement even if it is not pleaded can be of help in effecting partition provided that shares of the parties pleaded are not in conformity with the legitimate share of the parties. The Commissioner of Partition nowhere said that the agreement spoken of in this matter is inconformity with the legitimate shares of the parties. As such I think the aforesaid judgement in no way does help the plaintiff or any other parties. 22. The decisions cited by Mr. Dey reported in AIR 1977 SC 292 is wholly irrelevant in this case. As such I think this should not be discussed at all. The proposition laid down therein has relevancy in different subject-matter. 23. Another decision of this Court reported in AIR 1988 Cal 430 that the Commissioner of Partition submitted a report making allotment of the share of the plaintiff only, at whose instance he was appointed. He did so in that case misreading dictate and mandate of the preliminary decree. The proposition laid down therein has relevancy in different subject-matter. 23. Another decision of this Court reported in AIR 1988 Cal 430 that the Commissioner of Partition submitted a report making allotment of the share of the plaintiff only, at whose instance he was appointed. He did so in that case misreading dictate and mandate of the preliminary decree. He thought that he should make allotment in favour of the parties who applied for his appointment. This report was set aside by the Division Bench of this Court amongst other on the ground. "In view of the discussion and findings as above the report of the Commissioner of Partition is not acceptable and/or sustainable. The final decree was passed without examining the above aspect at all. It was passed mechanically." 24. In my opinion the report of the Commissioner and her allotment is null and void as it is contrary to the wishes of the Court. Any action taken by the Court on null and void material is also null and void. I therefore, have no hesitation to set aside the final decree. 25. Under those circumstances fresh step has to be taken pursuant to the preliminary decree, by the learned Commissioner of Partition. The parties have accepted the Preliminary decree as such question of challenging the same does not and cannot arise and in fact none has challenged as wrongly contended by Mr. Dey. It is wrong to say as suggested by Mr. Dey that final decree has been passed on the basis of the preliminary decree. From the language of the final decree it appears that Court has not accepted the preliminary decree but the report of the Commissioner of the Partition while passing final decree. 26. Thus both the application of the petitioners are allowed, however, without any order as to costs. Now question is who is to act as a Commissioner of Partition. Mr. Das complains that because of the negligent act and conduct of the learned Commissioner of Partition she should be removed. I think she had proceeded bona fide but in my view without having any elementary knowledge of the law of partition in this matter. As such without removing her I shall appoint a Joint Commissioner of Partition this time. The present Commissioner of Partition factually has understood the fact so her presence in this circumstances will be helpful. Therefore, I appoint Mr. As such without removing her I shall appoint a Joint Commissioner of Partition this time. The present Commissioner of Partition factually has understood the fact so her presence in this circumstances will be helpful. Therefore, I appoint Mr. Ashok Kumar Basu, Advocate of 12/1 Old Post Office Street, Calcutta with the existing Commissioner of Partition who shall act jointly and in case of non-availability of either of them, severally, proceed afresh on the basis of the preliminary decree passed previously. For any reason if they find any difficulty for implementing the decree in real sense they would be at liberty to approach the Court for appropriate clarification and guidance and/or modification. 27. New Commissioner of Partition will be entitled to initial remuneration assessed at 600 GMs. to be paid by the parties and/or will come out from the income of the joint family properties or parties will share the same in accordance with the share. Order accordingly.