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2014 DIGILAW 322 (CAL)

Gita Dey v. Nalinibala Dey

2014-04-04

DEBANGSU BASAK

body2014
JUDGMENT Debangsu Basak, J. 1. In this suit for partition a preliminary decree relating to five immoveable properties was passed on September 17, 2002. 2. So far as the other immovable properties and the businesses of the family were concerned, the judgment and preliminary decree dated September 19, 2002 provided that, the learned Joint Commissioner of Partition appointed by such judgment and preliminary decree would make an enquiry as to whether there was any dispute as regard the share of the parties in relation thereto. If the learned Joint Commissioner of Partition found that there was any dispute and if any party made any greater claim or share than mentioned in the plaint, then the learned Commissioner of Partition would call upon the parties to prove the same and for such purpose the learned Joint Commissioner of Partition would take evidence. Such evidence was directed to be submitted before the Court on the date of submitting the Return. If no dispute was raised so far as the residuary properties were concerned, the Joint Commissioner of Partition was directed to take effective steps for getting the properties and businesses partitioned and divided by metes and bounds as far as possible and to submit a comprehensive Return in respect thereof. 3. The personnel of the Joint Commissioner of Partition were subsequently changed to the present Commissioner of Partition. The present Commissioner of Partition filed a Return which he forwarded to the Advocate for the parties under cover of a letter dated July 1, 2005. The Return of the Commission of Partition was annexed to the petition as Annexure ‘C’. 4. By the present application the plaintiffs sought setting aside of such Return of the Commissioner of Partition. 5. The application was heard on March 10, 2014 and I reserved judgment. The application appeared for the purpose of delivery of judgment on March 24, 2014. I intended to give directions for further hearing of the suit on the impression that final decree in the suit was awaited. I placed the application for further hearing. The application was reargued on behalf of the plaintiffs. 6. Mr. Sabyasachi Chowdhury, learned Advocate for the plaintiffs relied on the judgment and decree dated September 5, 2012 passed by the Hon’ble Appeal Court granting his client time to take exception to the report of the Commissioner as to its contents. I placed the application for further hearing. The application was reargued on behalf of the plaintiffs. 6. Mr. Sabyasachi Chowdhury, learned Advocate for the plaintiffs relied on the judgment and decree dated September 5, 2012 passed by the Hon’ble Appeal Court granting his client time to take exception to the report of the Commissioner as to its contents. The Appeal Court directed the learned Trial Judge to hear such application afresh without adverting to earlier findings of the judgment and decree. In the event such application did not succeed, the final decree passed was directed to stand revived. 7. The present application was made pursuant to the leave granted by the Appeal Court on September 5, 2012. The present application, according to the plaintiffs, was within the time allowed by the Hon’ble Appeal Court. 8. He then relied on the plaint which detailed the list of immovable properties and businesses which were to be partitioned. 9. He contended that, the plaintiffs in the plaint set out the immovable properties and the businesses which the plaintiffs were seeking partition of. He submitted that, when the judgment and preliminary decree dated September 17, 2002 was passed none of the parties contended that, the immovable properties and the business as set out in the plaint were not part of the partition suit. He relied heavily on the judgment and preliminary decree dated September 17, 2002 and submitted that, the parties agreed to partition of the five immovable properties recorded in the preliminary decree. So far as the balance immovable properties and the businesses forming the subject matter of the suit was concerned, the decree directed the Joint Commissioner of Partition to enquire as to whether there was any dispute as regards the share of the parties in relation thereto. In the event the Joint Commissioner of Partition found any dispute and in the event any party made any greater claim or share than mentioned in the plaint, then the Joint Commissioner of Partition would call upon such party to prove the same and for that purpose the Joint Commissioner of Partition was empowered to take evidence. The Joint Commissioner of Partition was directed to submit such evidence to Court along with the Return. The Joint Commissioner of Partition was directed to submit such evidence to Court along with the Return. Relying heavily on this portion of the decree it was submitted that, the parties proceeded on the basis that, the properties and businesses as mentioned in the plaint were part of the lis and were required to be partitioned by metes and bounds. According to the learned Advocate for the plaintiffs, apart from the five immovable properties which were dealt with by the preliminary decree, the shares of the parties so far as the residuary immovable properties and the businesses enumerated in the plaint was concerned, it was for a party who was claiming a share higher than as stated in the plaint to establish such higher claim by way of evidence before the Joint Commissioner of Partition. According to the plaintiffs, the Commissioner of Partition misconstrued the judgment and preliminary decree dated September 17, 2002 and as such his Return was vitiated. 10. According to him, all the properties and businesses involved in the suit for partition were not partitioned by the so-called final decree. He also relied on the genealogical table annexed to the plaint. He submitted that, the preliminary decree was for 50% of the shares. There was no decree for the balance 50% shares. He submitted that, by the Order dated January 16, 2003 two further properties were added to the suit for partition. These two properties were also not dealt with either in the preliminary decree or in the final decree. 11. He contended that, the preliminary decree dated September 17, 2002 did not permit the Commissioner of Partition to decide title. The onus was on the party who was claiming any share in respect of any immovable property or business involved in the suit for partition at a share higher than that mentioned in the plaint to prove such claim. According to him, the report of the Commissioner of Partition was contrary to the judgment and preliminary decree dated September 17, 2002. He relied on the report and specifically at a portion of the report where the Commissioner of Partition recorded that he felt the word “greater” was a comparative term. According to him, the report of the Commissioner of Partition was contrary to the judgment and preliminary decree dated September 17, 2002. He relied on the report and specifically at a portion of the report where the Commissioner of Partition recorded that he felt the word “greater” was a comparative term. According to the Commissioner of Partition, once the shares as mentioned in the plaint was proved by the witnesses of the Defendant No. 10 or the plaintiffs, the case of the defendants making greater share or claim could be adjudicated. According to Mr. Chowdhury the Commissioner of Partition wrongly interpreted the scope of his work. He also relied upon the valuation report. 12. Mr. Chowdhury relied upon the Order dated August 7, 2006 passed by the Appeal Court and submitted that his client was entitled to take the aid of Section 105 of the Code of Civil Procedure, 1908 to challenge all interlocutory orders leading to the passing of the final decree. 13. He next contended that, the final decree dated August 11, 2005 did not dispose of the partition suit in its entirety. He relied on the various prayers made in G.A. No. 2533 of 2005 on which basis the final decree was passed in support of such contention. 14. Mr. Chowdhury relied on All India Reporter 1934 Patna page 32 (Ram Bahadur & Ors. v. Sri Thakur Siri Sitaramji Maharaj & Ors.) with regard to the duty of the Commissioner of Partition. 15. On behalf the Defendant Nos. 18 series Mr. Sakhya Sen learned Advocate contended that, the plaintiffs adopted dilatory tactics and were interested in delaying the disposal of the partition suit. He relied on his client’s affidavit and the narration of events made in his clients affidavit affirmed on December 21, 2012. He submitted that, similar application was made by the plaintiffs on earlier occasion and that the same stood rejected. He relied on an Order dated June 22, 2005 which according to him, narrated the misconduct of the plaintiffs with regard to the proceedings before the Commissioner of Partition. He relied heavily on the finding recorded in such order that the plaintiffs and the Defendant No. 10 by a concerted effort adopted dilatory tactics and was standing in the way of the Commissioner to conclude the proceedings. He relied heavily on the finding recorded in such order that the plaintiffs and the Defendant No. 10 by a concerted effort adopted dilatory tactics and was standing in the way of the Commissioner to conclude the proceedings. The order recorded that, the plaintiffs and the Defendant No. 10 conducted themselves in an extremely mala fide manner. He contended that, under the Evidence Act, 1872 it was for the plaintiffs to prove that the parties were entitled to the shares in the immovable properties and businesses narrated in the plaint. According to him, it was for the plaintiffs to establish that, the residuary immovable properties and the businesses as mentioned in the plaint were joint family properties and businesses. Only upon such onus being discharged by the plaintiffs would the burden shift upon the defendants. 16. I considered the rival contentions of the parties and the material on record. A preliminary decree was passed on September 17, 2002. The parties invited the Court to pass the preliminary decree in respect of five immovable properties. So far as the residuary immovable properties and the businesses narrated in the plaint were concerned the preliminary decree dated September 17, 2002 directed that, the Joint Commissioner of Partition appointed by the preliminary decree in respect of the five immovable properties would make an enquiry as to whether there was any dispute as regards the share of the parties in relation to such properties and businesses. In the event the Joint Commissioner of Partition found any dispute and in the event any party to the suit made any greater claim or share than mentioned in the plaint, then the Joint Commissioner of Partition was empowered to call upon the parties to prove the same and for such purpose they were empowered to take evidence. The evidence taken by them was directed to be submitted to Court along with the Return of the Commissioner of Partition. In the event no dispute was raised so far as the residuary properties and businesses were concerned, the Joint Commissioner of Partition were directed to take effective steps for getting such residuary properties and businesses partitioned and divided by metes and bounds as far as possible and to submit a comprehensive Return. 17. By the Order dated September 5, 2012, the plaintiffs were allowed to file the present application. 17. By the Order dated September 5, 2012, the plaintiffs were allowed to file the present application. The present application was filed within the time granted by the Order dated September 5, 2012. The plaintiffs were however required to establish that the report of the Commissioner of Partition was vitiated on any ground warranting its rejection. 18. Mr. Chowdhury contended that, the final decree dated August 11, 2005 was partial in the sense that the final decree did not deal with all the shares and the properties and businesses involved. The final decree dismissed the partition suit as regards the disputed properties mentioned in the plaint other than those mentioned in the paragraph 3 of G.A. No. 2533 of 2005. The appeal carried against the final decree dated August 11, 2005 was disposed of on September 5, 2012. By the judgment and decree dated September 5, 2012 the Appeal Court permitted the plaintiffs to apply for setting aside of the report of the Commissioner. The Appeal Court directed that, in the event such application did not succeed the final decree would stand revived. The point urged before me on behalf of the plaintiffs that, the final decree dated August 11, 2005 disposed of the suit for partition partially, did not appear to be taken before the Appeal Court by the plaintiffs who were the appellants there. Parties were bound by the final decree dated August 11, 2005 and the judgment of the Division Bench dated September 5, 2012. In such view the contention on behalf of the plaintiffs in that regard could not be accepted. 19. Subsequent to the preliminary decree dated September 17, 2002 the personnel of the Joint Commissioner of Partition was changed. The present Commissioner of Partition undertook the work of carrying out the directions contained in the judgment and preliminary decree dated September 17, 2002. Before the Commissioner of Partition some of the parties adduced evidence in support of their respective claims. Subsequent to the preliminary decree dated September 17, 2002 the personnel of the Joint Commissioner of Partition was changed. The present Commissioner of Partition undertook the work of carrying out the directions contained in the judgment and preliminary decree dated September 17, 2002. Before the Commissioner of Partition some of the parties adduced evidence in support of their respective claims. Before the Commissioner of Partition, on behalf of the Defendant No. 18 series it was contended that, it was the burden of the plaintiffs as they filed the partition suit to show that the properties were joint and only after such initial burden was discharged by the plaintiffs, the onus lay on the contesting defendants to prove that the properties claimed by them were their separate and exclusive properties and did not form part of the joint estate. According to the Defendant No. 18 Series their affidavit of evidence placed before the learned Commissioner of Partition was not controverted by any of the other party. The Defendant No. 18 Series were not cross-examined. It was urged before the Commissioner of Partition on behalf of the Defendant No. 18 Series that, the evidence of such defendants be placed before the Hon’ble Court along with the Return submitted by the Commissioner of Partition. 20. In view of the stand taken by the Defendant No. 18 series the Commissioner of Partition proceeded to file his Return to this Hon’ble Court. 21. The Commissioner of Partition did not decide any issue raised by the parties before him. The preliminary decree dated September 17, 2002 did not permit the Commissioner of Partition to decide any issue. The preliminary decree dated September 17, 2002 required the Commissioner of Partition to take evidence in the event any party claimed any share greater or higher than that stated in the plaint in respect of the residuary properties and the businesses. The Defendant No. 18 series submitted evidence before the Commissioner of Partition. The Defendant No. 18 series took a stand that, the plaintiffs failed to establish that the residuary properties and the businesses were part of the joint family. The preliminary decree dated September 17, 2002 provided that, in the event parties raised any dispute then the parties would be entitled to adduce evidence before the Commissioner of Partition and the Commissioner of Partition ought to submit such evidence along with his Return. The preliminary decree dated September 17, 2002 provided that, in the event parties raised any dispute then the parties would be entitled to adduce evidence before the Commissioner of Partition and the Commissioner of Partition ought to submit such evidence along with his Return. In the meetings conducted by the Commissioner of Partition he found that, the parties were disputing the respective shares in the residuary immovable properties and businesses. Evidence adduced by the parties before him were submitted along with his Return to Court. 22. The Commissioner of Partition was not required to decide as to whether the plaintiff must establish residuary properties and businesses of the suit were joint family estate or not. The only question was whether the Return of the Commissioner of Partition was in terms of preliminary decree dated September 17, 2002 or not. 23. In Ram Bahadur & Ors. (supra) It was held that the Commissioner of Partition could not decide the shares of the parties. In the instant case, the Commissioner of Partition did not decide the shares of the parties. 24. The Return of the Commissioner of Partition was in terms of preliminary decree dated September 17, 2002. In such circumstances, there was no reason to set aside the Return of the Commissioner of Partition. 25. G.A. No. 2740 of 2012 is dismissed, however, without any order as to costs.