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2012 DIGILAW 416 (CAL)

Bela Sinha v. Motilal Rakshit

2012-05-04

PRASENJIT MANDAL

body2012
Judgment :- Prasenjit Mandal, J. This application is at the instance of the defendant No.2 and is directed against the Order dated June 28, 2010 passed by the learned Civil Judge, Senior Division, 3rd Court, Howrah in Title Suit No.83 of 1999 thereby allowing the prayer for local inspection, to hold partition, commission for allotment, valuation and demarcation of the suit property, etc. The plaintiff/opposite party herein instituted a suit being Title Suit No.83 of 1999 for the partition and other reliefs. The defendant is contesting the said suit. The plaintiff filed two applications, one under Order 39 Rule 7 of the CPC dated May 23, 2002 & another under Order 26 Rule 9 of the CPC dated May 18, 2006. By the impugned order, the learned Trial Judge appointed the Commissioner to hold partition, commission for allotment, valuation and demarcation of the suit property. Being aggrieved by such orders, the defendant No.2 has preferred this application. Now, the question is whether the impugned order should be sustained. Upon hearing the learned Counsel for the parties and on going through the materials-on-record, it appears that the learned Trial Judge has committed a great mistake in allowing the said two applications at the stage before passing the preliminary decree for partition in the said suit. Mr. Probal Mukherjee, learned Advocate appearing on behalf of the petitioner submits that since no preliminary decree has yet been passed in the said suit for partition, at present, no inspection even on the points mentioned in the application for inspection should be made. He has also submitted that the other application under Order 26 Rule 9 of the CPC has been disposed of by the learned Trial Judge without recording any reasons but holding that he was of the view that the application should be allowed. This is not enough in allowing the said application. Mr. Sardar Amjad Ali, learned Senior Advocate appearing on behalf of the opposite party has fairly submitted that the prayer for inspection has been properly allowed but the learned Trial Judge has committed a mistake by describing that the inspection is meant for holding partition, commission for allotment, valuation and demarcation of the suit property, etc., as mentioned in the impugned order. But the inspection should be allowed to draw a sketch map of the suit property, to note down the roots under remaining portion of the steam of the trees cut and removed from ‘A’ Schedule property and to note down other features. So, the impugned order may be modified in the line of the reliefs as sought for in the application for local inspection. Similarly, the application for local investigation should be allowed. But, I find from the materials-on-record that the suit is yet to be disposed of and the preliminary decree for partition is yet to be passed as sought for in the plaint. So, before that inspection on the points as mentioned is not, at all, necessary. Similarly, local investigation as prayed for by the plaintiff in the application dated May 10, 2006 on the points as mentioned in Page No.52 is not also necessary for the purpose of passing a preliminary decree. While passing a preliminary decree for partition, the Court is to consider what are the joint properties and what are the shares of the respective parties in the suit property and then to pass a preliminary decree accordingly directing the parties to make partition amicably if possible. If amicable partition is not possible amongst the parties, an appropriate order may be passed for effecting partition through the Court by appointment of a Commissioner. These are the steps to be taken subsequent to the passing of the preliminary decree. So far as the inspection to note the roots in respect of the trees cut down, I am of the view that it will not serve any purpose for passing a preliminary decree. If the plaintiff thinks that trees situated on the suit property are being cut down, appropriate measures may be taken such as temporary injunction, appointment of a receiver, etc. For that reason, inspection as sought for is not at all necessary. Similarly, no investigation is, at all, necessary on the points noted in the application. Accordingly, I am of the view that there is no ground for allowing the two applications before passing the preliminary decree for partition and they are prematured applications in a suit for partition. Accordingly, I am of the view that the learned Trial Judge has committed errors of law in passing the impugned orders which cannot be supported at all. Accordingly, the application is allowed. Accordingly, I am of the view that the learned Trial Judge has committed errors of law in passing the impugned orders which cannot be supported at all. Accordingly, the application is allowed. The impugned order is set aside. Both the applications referred to earlier stand rejected. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.