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Patna High Court · body

2006 DIGILAW 61 (PAT)

Radha Devi v. Mithilesh Thakur

2006-01-18

R.N.PRASAD

body2006
Judgment 1. The petitioner has filed this revision against the order dated 22.2.2005 passed by Additional Munsif-IV, Darbhanga in Title Suit No. 89/92 whereby the Court directed the parties to adduce evidence for determination of justified prevailing rate of Schedule-ll property of the plaint. 2. The plaintiffs-opposite party filed the above mentioned Title Suit on 28.9.1992 against the defendant-petitioner and others for partition of their purchased land fully described in Schedule-ll of the plaint. The defendant 1st party-petitioner appeared in the suit and filed written statement on 12.2.1993. In para 31 of the written statement specific averment/undertaking was given to buy the share of the transferee plaintiffs. The suit was taken up for hearing and it was decreed and the claim of the petitioner was rejected. The petitioner filed Title Appeal No. 9/97. The appellate Court allowed the appeal with respect to the claim of the appellant-petitioner and held that the petitioner is entitled to buy the share of the plaintiffs-opposite party on the valuation fixed by the trial court. The plaintiffs-opposite party filed Second Appeal No. 29/99 before the High Court against the judgment and decree of the 1st appellate Court. The said appeal was dismissed on 22.3.2002 holding that there is no infirmity in the judgment and decree muchless involving a substantial question of law warranting interference by the Court. Thereafter the matter, with regard to determination of the valuation of the property mentioned in Schedule-ll of the plaint, was taken up before the Court of Munsif. The learned Munsif by the order impugned directed the parties to adduce evidence for determination of prevailing rate of Schedule-ll property, by the order impugned. 3. The submission of the learned counsel for the petitioner is that the crucial date for fixing the valuation of the share of the transferee is the date when the option of purchase in accordance with Section 4 of the Partition Act, 1983 is exercised by the defendant-co-sharer. On the other hand, learned counsel for the opposite party supported the order impugned and stated that prevailing market rate of the suit property is to be determined for the purpose of Section 4 of the Partition Act. 4. On consideration, this much is obvious that the plaintiffs-opposite party filed the suit seeking partition of the purchased property on 28.9.1992. The petitioner appeared in the suit and filed written statement on 12.2.1993. 4. On consideration, this much is obvious that the plaintiffs-opposite party filed the suit seeking partition of the purchased property on 28.9.1992. The petitioner appeared in the suit and filed written statement on 12.2.1993. In para 31 of the written statement the defendant undertook to buy the share of the transferee-plaintiffs. The suit was decreed but the claim of the petitioner was rejected. The petitioner filed appeal and his appeal was allowed and the appellate court held that the petitioner is entitled to buy the share of the plaintiff-opposite party. The Second Appeal against the said judgment and order of the appellate Court was also dismissed. Therefore, the petitioner became entitled to buy the share of the plaintiffs. Thereafter, a question arose for determination of the valuation of the Schedule-ll property. The Court below directed the parties to adduce evidence for determination of prevailing rate of Schedule-ll property. 5. Counsel for the petitioner disputed the finding saying that crucial date for the purpose of valuation is the date when option to purchase under Section 4 of the Act was exercised and not the prevailing market rate of the suit property. Therefore, the issue involved is the relevant date for fixing the valuation of the property. Section 4 of the Partition Act says that where a share of a dwelling house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a share holder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf. In the instant case it has already been stated that the right of the petitioner has already been determined to buy the share of the plaintiffs. 6. In the instant case it has already been stated that the right of the petitioner has already been determined to buy the share of the plaintiffs. 6. In the case of Lal Kejriwal and Others V/s. Bhawanath Jha, AIR 1977 Pat 5 , a Bench of this Court considered such dispute and held that Section 4(1) gives option to any member of the family who is a co-sharer in respect of a dwelling house, a portion whereof has been transferred to a person who is not a member of such family, to purchase the share of such transferee if a suit for partition is filed by that transferee. On such option being exercised, the valuation of such share has to be determined. The crucial date for the purpose of fixing the valuation of the share of such transferee is the date when option to purchase in accordance with Section 4 is exercised by the defendant-co-sharer. 7. It is thus, obvious that the crucial date is the date on which the defendant exercised option under Section 4 of the Partition Act. In the instant case the Petitioner filed written statement on 12.2.1993 giving undertaking in paragraph 31 thereof to buy the share of the transferee plaintiffs-opposite party. Thus, the relevant date for fixation of the value of the property in Schedule-ll of the plaint is 12.2.1993 on v hich date the petitioner exercised option under Section 4 of the Partition Act. 8. Thus, the Court below has committed error in passing the order for determination of the prevalent market rate of the property in question and as such, this revision petition is allowed. The order impugned is hereby set aside with a direction to determine the value of the suit property on 12.2.1993. the date on which the petitioner exercised option under Section 4 of the Partition Act.