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2013 DIGILAW 413 (CAL)

Mati Shaw alias Matilal Shaw v. Mohan Shaw

2013-07-04

TAPAN KUMAR DUTT

body2013
JUDGMENT : Tapan Kumar Dutt, J. This Court has heard the learned Advocate for the respective parties and has considered the relevant materials on record. 2. Briefly, the facts of the case are as follows : The plaintiffs-respondents filed a suit for partition in respect of certain plot of land with structure thereon and the plot according to the preliminary decree in the partition suit comprises of an area of 65 decimals. The suit was decreed in 2 preliminary form whereby it was decreed that the plaintiffs have eight annas share in the suit property and it is not in dispute that the defendant/respondent also has eight annas share in the suit property. The partition commissioner was appointed and the work of partition was done. It may be noted here that the preliminary decree was not challenged by any of the parties. The commissioner of partition gave his final report and on the basis of such final report the suit was finally decreed by the learned Trial Court on 16.02.1999. Thus, the learned Trial Court being the learned Civil Judge (Junior Division), 1st Court at Hooghly decreed the Title Suit No.175 of 1989 finally on the basis of the said Commissioners report. Challenging the said decree the defendant filed Title Appeal No. 109 of 2001 which was placed before the learned 2nd Court, Civil Judge (Senior Division) at Chinsurah. The learned 1st Appellate Court affirmed the judgment and decree passed by the learned Trial Court and dismissed the said Title Appeal by the impugned judgment and decree dated 13.03.2003. 3. The defendant has thereafter filed the present second appeal, which was admitted for hearing on the following substantial questions of law by order dated 27th June, 2003 : I. Whether the Commissioner of Partition could effect partition of the suit property described in preliminary decree dehors and different from the preliminary decree and deviate from the measurement mentioned therein without any authorisation by Court and that too without having undertaking survey of the plot to establish the area of the plot ; and II. Whether the learned court could pass a final decree on the basis of an excess area without amendment to the schedule to the plaint or the preliminary 3 decree and without there being any material to establish that the schedule to the preliminary decree was incorrectly written." 4. Whether the learned court could pass a final decree on the basis of an excess area without amendment to the schedule to the plaint or the preliminary 3 decree and without there being any material to establish that the schedule to the preliminary decree was incorrectly written." 4. The learned Advocate appearing on behalf of the defendant/appellant has submitted that records would show that the suit was filed by the plaintiffs/respondents for partition in respect of 65 decimals of land with structure and preliminary decree was passed accordingly. The said learned Advocate submitted that the learned partition commissioner acted illegally in submitting his report of partition in respect of 110 decimals of land i.e., 45 decimals in excess of the land which was described in the said preliminary decree. The said learned Advocate submitted that the learned partition commissioner could not have done the partition work in respect of 110 decimals, which was beyond the scope of the preliminary decree. The said learned Advocate submitted that without the amendment of the plaint and also the consequent amendment to the preliminary decree, the partition work done by the learned partition commissioner cannot stand. 5. The said learned Advocate further submitted that even though the partition commissioner has recorded in his report that the suit property was identified by both the parties, records would show that there is no signature appearing in the field notes prepared by the partition commissioner which could be stated to be that of the defendant. The said learned Advocate also submitted that the learned partition commissioner was not correct in 4 recording that the suit property was identified by both the parties to the suit. The said learned Advocate submitted that no proper survey work was done by the partition commissioner and the partition commissioner proceeded simply on the basis of the alleged identification made by the plaintiffs/respondents only and thus serious error crept into the report of the partition commissioner. 6. The said learned Advocate also submitted that the partition commissioner acted on surmises and conjectures while dealing with the question of arrears rent as the learned Commissioner has himself observed that evidence of both the parties are not corroborated by independent witnesses in this regard, and without any basis the learned Commissioner has come to the conclusion with regard to the rate of rent that could be fetched from the suit property. 7. 7. The learned Advocate appearing on behalf of the plaintiffs/respondents submitted that the suit property happened to be butted and bounded on three sides and therefore there could not have been any error in the identification of the suit property. The said learned Advocate submitted that whether the suit property measures 65 decimals or 110 decimals, does not really matter because the suit property is butted and bounded on three sides or it may be said on all the sides. According to the said learned Advocate, in such circumstances there 5 can be no preliminary point with regard to ascertaining the identity of the suit property. 8. The said learned Advocate has further contended that the defendant/appellant in his written objection to the commissioners report did not state specifically that he was not present during the commission work but he only stated that neither his signature nor his advocates signature appears on the field notes and, therefore, according to the said learned Advocate, it cannot be said that the defendant/appellant was not present during the commission work. The said learned Advocate further submitted that both the courts below held that the defendant/appellant was present during the commission work and it being a question of fact cannot be agitated in a second appeal. 9. There is no dispute that the preliminary decree passed in the partition suit was in respect of 65 decimals of land with structure. There is also no dispute that the learned partition commissioner was under obligation to do the partition work in respect of only 65 decimals of land with structure. 10. The learned Advocate for the plaintiffs/respondents could not point out from the field notes submitted by the learned partition commissioner that on any day of the commission works either the defendant or his learned Advocate had put their respective signature on the field notes. Written objection filed to the commissioners report 6 shows that the defendant has stated that it is not at all true that the suit property was identified by the parties. The defendant has further stated that the learned partition commissioner without surveying the suit plot acted at the instance of the plaintiffs/respondents. Written objection filed to the commissioners report 6 shows that the defendant has stated that it is not at all true that the suit property was identified by the parties. The defendant has further stated that the learned partition commissioner without surveying the suit plot acted at the instance of the plaintiffs/respondents. Thus, it is found that the defendant had filed his written objection to the commissioners report and it is not clear as to whether or not the defendant had actually participated during the commission work - at least, his signature does not appear on the field notes. When the learned partition commissioner found that the property in respect of which he was doing the partition work is in much excess of the area which is described in the preliminary decree, the learned partition commissioner ought to have reported the matter before the learned Court. It has to be borne in mind that the defendant in his written objection has also stated that the house of the plaintiffs and the challa ghar where the cycle repairing is done is in a different plot of land i.e. the plot No. 2717 which was not the suit property but on perusal of the commissioners report this Court finds that the learned commissioner had included such cycle repairing shop in his report which leads to the confusion as to whether or not the partition work was done by confining the work to the suit property only. 11. This Court is of the view that the commission work for partition is to be done afresh in accordance with law 7 and the learned commissioner should undertake proper work of survey if it becomes necessary. 12. In such circumstances, this Court is also of the view that the matter should be remanded back to the learned Trial Court for work of partition afresh by a competent learned Commissioner. 13. In view of the discussions made above, the present appeal is disposed of by setting aside the impugned judgments and decrees of the learned Courts below and also by setting aside the learned Commissioners report concerned. 14. 13. In view of the discussions made above, the present appeal is disposed of by setting aside the impugned judgments and decrees of the learned Courts below and also by setting aside the learned Commissioners report concerned. 14. The suit is remanded back to the learned Trial Court and the learned Trial Court will give appropriate directions to the learned Commissioner to do the work of partition afresh keeping the preliminary decree in mind and after the Commissioner submits his final report the learned Trial Court shall dispose of the suit in accordance with law. 15. It is made clear that if the learned Commissioner finds on actual measurement of the suit property that it does not tally with the preliminary decree, the learned Commissioner shall report the matter to the learned Trial Court concerned for appropriate directions. 16. The appeal stands disposed of. 17. There will, however, be no order as to costs. 18. Let the lower court records be sent back to the learned Court concerned immediately. 19. No formal decree need be drawn up in the present case. 20. Urgent certified xerox copy of this judgment, if applied for, shall be given to the parties as expeditiously as possible on compliance of necessary formalities.