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2014 DIGILAW 822 (CAL)

Gita Dey v. Nalinibala Dey

2014-08-28

ASHIM KUMAR BANERJEE, MANJULA CHELLUR

body2014
JUDGMENT : Manjula Chellur, J. This appeal is filed against judgment dated April 4, 2013 in a suit for partition. 2. So far as preliminary decree, as early as September 17, 2002 it came to be passed in respect of five properties. As submitted, later two other properties were also included. So far as other immovable properties and the business of the family, it was indicated in the preliminary decree that Joint Commissioner of Partition appointed by virtue of judgment and preliminary decree would conduct an enquiry as to whether there was any dispute as regard the share of the properties in relation thereto, if there were to be a dispute with regard to any greater claim or share mentioned in the plaint, then Commissioner of Partition would call upon the parties and would go through the same and for such purpose learned Joint Commissioner of Partition to take evidence. Thereafter, such evidence to be placed before the Court on the date of submitting the return in case no dispute was raised. So far as the residuary properties concerned, the Joint Commissioner of Partition was directed to take effective steps for getting the properties and business partitioned by metes and bounds as far as possible and to submit a comprehensive return thereof. 3. It is not in dispute that subsequently Joint Commissioner of Partition came to be changed to the present Commissioner of Partition. A return came to be filed by the present Commissioner of Partition and the same was forwarded to the advocate of the parties by letter dated July 1, 2005. 4. The impugned order is on the application filed by the plaintiffs seeking setting aside the return of the Commissioner of Partition. 5. The learned Advocate for appellants/plaintiffs relies on the judgment and decree dated September 5, 2012 passed by Hon'ble Appellate Court granting his client time to take exception to the report of the Commissioner as to its contents. The Appellate Court directed the learned Trial Judge to hear such application afresh without adverting to earlier findings of the judgment and decree. In case such application was not successful, the final decree passed was directed to stand revert. The application referred in the impugned order was meant in pursuance of direction of the Appellate Court. 6. According to the appellants, the present application was within the time allowed by the Hon'ble Appeal Court. In case such application was not successful, the final decree passed was directed to stand revert. The application referred in the impugned order was meant in pursuance of direction of the Appellate Court. 6. According to the appellants, the present application was within the time allowed by the Hon'ble Appeal Court. It is further contended, the judgment and the preliminary decree dated September 17, 2002 was passed. When judgment and preliminary decree dated September 17, 2002 was made, none of the parties contended that the immovable properties and the business as set out in the plaint would not form the part of partition suit. 7. As already stated above, the judgment and preliminary decree dated September 17, 2002 was with regard to five immovable properties and later two more came to be added. The relevant point to be considered is whether there was any dispute as regard the share of the parties in relation to residuary properties which were not the subject matter of judgment and preliminary decree. Further one has to see whether any parties to the suit made any greater claim or share than mentioned in the plaint and what the Joint Commissioner of Partition did in pursuance of direction of preliminary decree dated September 17, 2002. According to appellants/plaintiffs, apart from the properties which was subject matter of judgment and preliminary decree, it was for the party who was claiming greater share than stated in the plaint to establish such claim by way of evidence before the Joint Commissioner of Partition. But, however, the Commissioner of Partition misconstrued the judgment and decree. Therefore, return of the Commissioner is invalid or erroneous. 8. It is further contended that the final decree in existence did not partition the properties and business, i.e., the subject matter of the partition suit. It was further contended only 50% of the properties are the subject matter of preliminary decree and balance properties have to be divided by metes and bounds. It is further contended on behalf of the plaintiffs that the preliminary decree dated September 17, 2002 never allowed the Commissioner of Partition to decide the shares and also title. The party who intends to claim more share or greater share in respect of remaining immovable properties and business than that mentioned in the plaint have to prove such claim. It is further contended on behalf of the plaintiffs that the preliminary decree dated September 17, 2002 never allowed the Commissioner of Partition to decide the shares and also title. The party who intends to claim more share or greater share in respect of remaining immovable properties and business than that mentioned in the plaint have to prove such claim. Therefore, the report of the Commissioner of Partition was contrary to the judgment and preliminary decree. Several references are made to the report of the Commissioner of Partition regarding the meaning given to the word greater' etc. It was further pointed out that the Commissioner opined that once the claim as mentioned in the plaint was proved by witnesses of the defendant no.10 or the plaintiffs, the case of the defendants seeking greater share of claim should be adjudicated. This was an erroneous observation on the part of the Commissioner enlarging the scope of work of the Commissioner of Partition. 9. So far as stands of defendant no.18, i.e., (the legal representatives), their Counsel contends that from the beginning, plaintiffs have adopted dilatory tactics and were interested only in dragging the proceedings with the sole object of delaying the disposal of the partition suit. It was further contended that a similar application came to be made by the plaintiffs on earlier occasion and the same was dismissed. Therefore, the present application is hit by principles of res judicata. It was further contended that misconduct of the plaintiffs was noticed by the Courts on several occasions, for example, order dated June 22, 2005. According to the defendant No. 18 series, the conduct of the plaintiffs and the defendant no.10 amply established their extreme mala fide intention and concerted effort to delay the disposal of the suit. According to the learned Counsel for defendant no.18 series, the plaintiffs have to first establish that they are entitled to the respective share from the immovable properties and business described in the schedule to the plaint. In other words, all the properties were joint family properties and thus the onus shifts to the defendants to establish their claims. 10. Ld. According to the learned Counsel for defendant no.18 series, the plaintiffs have to first establish that they are entitled to the respective share from the immovable properties and business described in the schedule to the plaint. In other words, all the properties were joint family properties and thus the onus shifts to the defendants to establish their claims. 10. Ld. Advocate arguing for the respondents has relied upon a judgment of Appasaheb Peerappa Chamdgade v. Devendra Peerappa Chamdgade and Ors., reported in (2007) 1 Supreme Court Cases 521 to contend that:- "There is no presumption of a joint Hindu Family but on the evidence if it is established that the property was joint Hindu family property and the other properties were acquired out of that nucleus, if the initial burden is discharged by the person who claims joint Hindu family, then the burden shift to the party alleging self-acquisition to establish affirmatively that the property was acquired without the aid of the joint family property by cogent and necessary evidence." 11. They also placed reliance on a judgment of Bhanu Kumar Jain v. Archana Kumar and Anr., reported in (2005) 1 Supreme Court Cases 787 to contend that:- "Principles of res judicata apply in different stages of the same proceedings." 12. With these arguments at our command, we proceed to consider the case of the parties. It is not in dispute that by virtue of an order dated September 5, 2012, the plaintiffs were allowed to file application of the present nature. It is also not in dispute that it was filed within the time granted by the said order. It was made clear in the said order that the plaintiffs were to establish that the report of the Commissioner of Partition is vitiated on such and such a ground warranting its rejection. Initially, a preliminary decree was passed on September 17, 2002 in respect of five immovable properties. Sometime in 2003 two more were added to this preliminary decree. It was made clear in the said order that the plaintiffs were to establish that the report of the Commissioner of Partition is vitiated on such and such a ground warranting its rejection. Initially, a preliminary decree was passed on September 17, 2002 in respect of five immovable properties. Sometime in 2003 two more were added to this preliminary decree. It was also made clear that the Commissioner of Partition appointed by the preliminary decree was to make an enquiry as to whether any of the parties to the suit raises any dispute regarding their share and if any dispute is raised claiming greater claim or share than mentioned in the suit, the Commissioner of Partition were empowered to call upon the parties to prove the same and they were further empowered to record evidence in that behalf. Such evidence was directed to be placed before the Court at the time of submitting return of Commissioner of Partition. If no dispute was raised so far as the residuary properties and business, the Joint Commissioner of Partition were to take effective steps for getting partition of residuary properties and business by metes and bounds as far as possible. 13. It is also not in dispute that final decree dated August 11, 2005 was partial as entire properties and business involved in the suit were not dealt with. It dismissed the partition suit so far as disputed properties mentioned in the plaint other than those mentioned at paragraph no.3 of G.A. No.2533 of 2005. This came to be challenged and appeal came to be disposed of by order dated September 5, 2012. The said judgment and decree dated September 5, 2012 which has become final, the Appellate Court permitted the plaintiffs to apply for setting aside the report of the Commissioner. In that context, the Appellate Court opined that in the event of such application did not succeed, the final decree would stand revived. According to the plaintiffs, the final decree dated August 11, 2005 considered partition suit partially which was not challenged by the plaintiffs who were the appellants there. Therefore, parties were bound by the final decree dated August 11, 2005 and the judgment passed by the Division Bench dated September 5, 2012. This contention, according to us, seems to be erroneous. 14. Therefore, parties were bound by the final decree dated August 11, 2005 and the judgment passed by the Division Bench dated September 5, 2012. This contention, according to us, seems to be erroneous. 14. It is also noticed that personnel of the Joint Commissioner of Partition was changed subsequent to September 17, 2002. It became obligatory on the present Commissioner of Partition to carry out the directions contained in the judgment and preliminary decree dated September 17, 2002. Some of the parties adduced evidence admittedly in support of their respective claims before the Commissioner. Except contending that it was the burden of the plaintiffs to show that the properties were joint, defendant no.18 series represented before Commissioner of Partition that initial burden is on the plaintiffs to show that the properties were joint and only after discharge of such initial burden by the plaintiffs, the onus of establishment that the properties were otherwise falls on contesting defendants. Affidavit of evidence was placed by defendant no.18 series before Commissioner of Partition. Apparently it was not controverted by any one of the parties including the plaintiffs. Further defendant no.18 series were not cross-examined. Therefore, the evidence of such defendants was placed before Court along with the return submitted by the Commissioner of Partition. 15. As noticed by learned Single Judge, the Commissioner of Partition only proceeded to file his return before the Court and Commissioner of Partition did not decide any issue touching the shares of the parties. It is also made clear that preliminary decree never vested such power with the Commissioner of Partition. It only directed him to record evidence in the event any party were to claim share greater or higher than one stated in the plaint. Apart from placing evidence before the Commissioner of Partition, defendant no.18 series took a stand that the plaintiffs failed to establish that the residuary properties and business were part of the joint family. As per the preliminary decree only in the event of raising any dispute, the parties were entitled to adduce evidence and the Commissioner of Partition to submit such evidence along with his return. This preliminary decree has reached finality and the same is not in dispute. In the meeting conducted by the Commissioner of Partition admittedly parties were disputing the respective shares in the residuary immovable properties and business. Therefore, evidence was recorded. This preliminary decree has reached finality and the same is not in dispute. In the meeting conducted by the Commissioner of Partition admittedly parties were disputing the respective shares in the residuary immovable properties and business. Therefore, evidence was recorded. It is not in dispute that Commissioner of Partition permitted parties to lead evidence. The controversy before the Commissioner was who has to lead evidence first and who has to discharge the burden of proving their respective case. Apparently, the Commissioner of Partition was not required to decide whether plaintiffs must establish or defendants to establish their case first. He was required to discharge his duty in terms of preliminary decree dated September 17, 2002. He was not required to say anything beyond that. Even if he were to observe or express any opinion beyond the scope of preliminary decree, the same need not be taken into consideration by the Court. It is well settled that the Commissioner of Partition cannot decide the shares of the parties. It is the duty of the Court to decide such shares. 16. The present application before the learned Single Judge was to set aside the return of the Commissioner of Partition. 17. As stated above, the Court can proceed to decide finally what is the respective share of each of the parties to the suit so far as the residuary properties and business depending upon the evidence recorded by the Commissioner. It is also open to the plaintiffs to seek relief of permitting them to lead evidence, if they have not done so. 18. So far as objection raised to the return of the Commissioner of Partition, we are of the opinion, none of the grounds raised warrant such interference. Accordingly, the order of learned Single Judge is upheld dismissing the appeal.