Research › Search › Judgment

Calcutta High Court · body

2015 DIGILAW 778 (CAL)

Mojam Ali Mondal v. Younus Ali Molla

2015-09-16

SHIVAKANT PRASAD

body2015
JUDGMENT : Shivakant Prasad, J. Challenge in this application is against the Order dated 31st July, 2014 passed by the learned Civil Judge (Junior Division), Sealdah in Miscellaneous Case No. 198 of 1978 arising out of Title Suit No. 612 of 1963 (Mojam Ali Mondal & Ors. v. Yunus Ali Mondal) inter alia, on the ground that learned Court below has failed to advert to and consider that for the purpose of making valuation of the pre-empted land, it is the duty of the Court to take into consideration the material fact and that the said pre-empted land had been sold out by the vendors in the year 1963, how much it could have fetched by way of sale price. Admittedly, the petitioners have been in uninterrupted and peaceful possession of the said pre-empted property since long before. The learned Trial Court had further considered for making valuation, certified copy of the Deed of Conveyance which was duly produced before it but, has failed to consider them and thereby erred in law by passing the impugned order appointing Government Valuer for the purpose of valuation of the property on the basis of present market value. 2. Chronology and event leading to the instant case is that one Kaloo Mondal, the predecessors-in-interest of the opposite parties during life time instituted a suit being Title Suit No. 612 of 1963 in the 3rd Court of Munsif at Alipore against predecessors-in-interest of the petitioners praying for a decree of partition of the suit property measuring about 94 sattaks of land consisting of dwelling house, garden along with pond on the ground that he had purchased the eight annas share of the suit property from other co-sharers and as the petitioners' predecessor-in-interest and title upon entering appearance filed an application under Section 4 of Partition Act praying for an order of pre-emption of the remaining half share of the suit property alleged to have been purchased by the said Kaloo Mondal on April 6, 1978 which was registered as Misc. Case No. 198/78. One Narayan Dastidar was appointed as a Partition Commissioner who submitted his report on July 8, 1981 wherefrom it is apparent that the defendant/petitioner has been in exclusive possession of the suit property and Mr. Case No. 198/78. One Narayan Dastidar was appointed as a Partition Commissioner who submitted his report on July 8, 1981 wherefrom it is apparent that the defendant/petitioner has been in exclusive possession of the suit property and Mr. K.C. Chatterjee was appointed as a Valuer Commissioner by Order No. 68 dated February 5, 1979 who filed his report which was challenged by the defendant/petitioner and due to death of said Valuer Commissioner the report could not be accepted. The parties were directed subsequently to adduce evidence in support of their claims regarding valuation over half of the suit property and on contested hearing by order dated June 13, 1995 the application under Section 4 of the Partition Act was allowed with a direction to pay a sum of Rs.5,000/- to the opposite parties being the valuation of the property in dispute and in compliance thereof, the petitioners deposited the said amount by Challan No. 12519 date 22.6.1995. 3. On being aggrieved by the said order, opposite parties preferred an appeal being Misc. Appeal No. 159/95 which was allowed on contest by the learned Additional District Judge, 2nd Court, Barasat vide order dated November 8, 2013 by which the order dated June 13, 1995 passed in Misc. Case No. 198/78 was set aside and the matter was sent back on remand to the learned Trial Court with direction to hear the matter afresh on the point of making valuation in accordance with law with the observation that though no particular procedure has been prescribed under Section 4 of Partition Act for making of valuation, yet it is expected that the Court should adopt a methodology which is reasonable and sustainable in law and further observed that the Court could have directed the parties to produce concrete materials with regard to market value of the land and properties in the adjoining areas, adjacent to the suit property and to ask for a report from the Government Department i.e. the Office of the District Registrar competent to determine the market valuation of the property in a particular locality. 4. A decision reported in 1981(1) CHN 524 , Santosh Kumar Mitra v. Kali Pada Das was relied which dealt with a question whether Section 4 was attracted if partition suit was not instituted by the stranger purchaser. 4. A decision reported in 1981(1) CHN 524 , Santosh Kumar Mitra v. Kali Pada Das was relied which dealt with a question whether Section 4 was attracted if partition suit was not instituted by the stranger purchaser. It was held that the term 'undivided family' has been used in Section 4 to mean a family not divided qua the dwelling house. 5. The Appellate Court while discussing the Misc. Appeal also relied on a decision reported in AIR 1981 Calcutta 278, AIR 1971 Orissa 198, AIR 1971 Orissa 284, 75 CWN 195, 60 CWN 829 in Subal Chandra Moindal v. Behari Das wherein it has been observed that the Commissioner should determine the valuation and the Commissioner appointed to effect partition may also determine the valuation. 6. The decision in 60 CWN 829 has also been taken into consideration wherein it has been observed thus - "while fixing a valuation after an application is made under Section 4 of the Partition Act the valuation is to be fixed on the proper market value. Such valuation is to be fair both to the stranger-purchaser and also to the co-sharers of the erstwhile undivided joint family. The sale by the stranger to the co-sharer is a forced sale and therefore such valuation is to be fixed with great care and precision." 7. On the point of valuation of the property in question, a case reported in 76 CWN 779 has been relied wherein it has been held thus - "under Section 4 of the Partition Act, the shareholder may ask for purchasing the share of the stranger-purchaser and the court shall making a valuation of such share in such manner as it thinks fit if the shareholders gives an undertaking to Court to purchase the share of the stranger purchaser." 8. It would appear that in compliance of the Appellate Court's order, the learned Trial Court fixed hearing of the matter on January 8, 2014 when the opposite parties took out an application for appointment of a Government Valuer for making present market value of the suit property according to law. The said application was contested on behalf of the petitioner contending that the learned Court may request the District Registrar to send Xerox copy of Sale Deed which was registered in between 1962 to 1978 of Mouza -Rajkwani which are only the proof of valuation. The said application was contested on behalf of the petitioner contending that the learned Court may request the District Registrar to send Xerox copy of Sale Deed which was registered in between 1962 to 1978 of Mouza -Rajkwani which are only the proof of valuation. It is further contended that the learned Additional District Judge while disposing of the Misc. Appeal 159/95 has not recommended in his Judgment dated 8.11.2013 for seeking any report from Government Valuer to assess on the present market value. On contested hearing, the learned Civil Judge (Junior Division), Sealdah allowed the application appointing Mr. Monojit Dey as Government Valuer with direction to execute writ after service of notice to both the parties. 9. This is the order impugned which is under revision before this Court. 10. It is submitted by the learned Counsel for the petitioners that the valuation of the property cannot be allowed to be had on the basis of present market value and relied on the case of Shew Sdhankar Shaw @ Shew Sankar Das v. Gaur Hari Maity & Ors. reported in 2010 (4) CHN (CAL) 989 adverting to paragraph 6 which reads as under - "6. The opposite parties however supported the impugned order by submitting that since the plaintiff/petitioner filed an application inviting the learned Trial Judge to determine the valuation of the share of the stranger purchaser in the suit property on 13th March, 2007, after the disposal of the appeal by the Hon'ble Supreme Court, the date of filing of such application i.e. on 13th March, 2007 should be regarded as a relevant date when the plaintiff/petitioner actually undertook to purchase the share of the stranger purchaser in the suit property." 11. It is pointed out that the valuation of the share of the stranger purchaser should be made with reference to the date when the plaintiff/petitioner undertook to purchase the share of the stranger purchaser and that neither the date when the petitioners' prayer for such purchase under section 4 of the Partition Act was ultimately allowed nor the date when the petitioners subsequently filed an application inviting the learned Trial Judge to assess the valuation of the shares of the stranger purchaser in the suit property. 12. In the above cited case following decisions have been relied - (i) Malati Ramchandra Raut & Ors. v. Mahadevo Vasudeo Joshi & Ors. 12. In the above cited case following decisions have been relied - (i) Malati Ramchandra Raut & Ors. v. Mahadevo Vasudeo Joshi & Ors. reported in AIR 1991 Supreme Court 700; (ii) Gopal Chandra Mitra & Ors. v. Kalipada Das & Ors. reported in AIR 1987 Calcutta 210; (iii) Surendra Nath Achar & Anr. v. Ram Chandra Hasru & Ors. reported in 75 CWN 195; (iv) Monomohan Saha v. Usha Rani Ghosh & Ors. reported in AIR 1979 Calcutta 79. 13. It is urged that in case of Malati Ramchandra Raut & Ors. v. Mahadevo Vasudeo Joshi & Ors. (supra) is a decision on a case where the Hon'ble Supreme Court considered the effect of sections 2 and 3 of the Partition Act. While considering the issue regarding the valuation of the share of the party whose share will be sold to the other co-sharer as per Section 2 of the Partition Act, the Hon'ble Supreme Court held that the valuation should be assessed by the Court with reference to the date when the right of a party to buy the other co-sharer's share is crystallized. Although, the said decision is not a direct authority on the present issue before this Court as the sale is directed in the case as per the provision of Section 4 of the Partition Act as observed by Hon'ble Justice Jyotirmoy Bhattachrya. 14. The learned Counsel for the petitioners has further adverted to paragraph 8 in the case of Shew Sdhankar Shaw @ Shew Sankar Das v. Gaur Hari Maity & Ors. (supra) wherein it is observed thus - "8. In fact, an identical issue was raised before the Division Bench of the Hon'ble Court in the case of Gopal Chadra Mitra & Ors. v. Kalipada Das & Ors. (supra) wherein the Division Bench of this Hon'ble Court held as follows: We are accordingly of the view that the relevant date for the purpose of determining the valuation under section 4(1) of the Partition Act would be the date when thee member-shareholder undertakes to buy the share of the transferee, provided such undertaking is given after the share of the transferee has been ascertained by the Court in the preliminary decree. But, when an application under section 4 of the Act containing such an undertaking has in fact been filed, as it can be filed, before the preliminary decree, the valuation shall have to be made as on the date of the preliminary decree, as only after ascertainment of share by such a preliminary decree, an application under section 4 along with the undertaking becomes legally effective and operative which until that stage remains a mere paper." 15. Learned Counsel for the petitioners has also made reference to an unreported decision dated May 6, 2015 in case of Smt. Maya Rani Halder v. Shree Mrityunjoy Kayal & Ors. (C.O. No. 686 of 2015) contending that relying on the observation in paragraph 9 and 10 of the above cited case [Shew Sdhankar Shaw @ Shew Sankar Das v. Gaur Hari Maity & Ors. reported in 2010 (4) CHN (CAL) 989], the Single Bench of this Hon'ble Court held that the relevant date for ascertainment of valuation of the share of the stranger purchaser would be on the date of filing of the application and not when the application is allowed by the judicial order. 16. The learned Counsel for the opposite party inviting my attention to the order of remand has pointed out that the order passed in Misc. case by the learned Court has been set aside. Therefore, the application for preemption under Section 4 of the Partition Act has to be considered afresh. 17. I do agree with the said submission as the learned Appellate Court by his judgment in Misc. Appeal No. 159/95 set aside the order passed in Misc. Case No. 198 of 1978 by remanding the Misc. case with direction to the Trial Court for hearing the matter afresh. However, it would appear that the learned Appellate Court below has given substantial findings on the point of methodology for valuation of the property in question. 18. Thus, bestowing upon the factual aspect of the case, I am of the view that in the instant case, the learned Trial Court has to assess the market value of the suit property as stood on the date of filing of application under Section 4 of the Partition Act. 19. 18. Thus, bestowing upon the factual aspect of the case, I am of the view that in the instant case, the learned Trial Court has to assess the market value of the suit property as stood on the date of filing of application under Section 4 of the Partition Act. 19. Therefore, the application under the scheme of Article 227 of Constitution of India has merit and is required to be allowed by setting aside the order impugned with direction to the learned Trial Court to hear out the Misc. Case No. 198 of 1978 afresh in letter and spirit of the order of remand passed by the lower Appellate Court. However, the learned Trial Court will consider the proposition of law as held in the case of Shew Sdhankar Shaw @ Shew Sankar Das v. Gaur Hari Maity & Ors. (Supra). 20. Ergo, the present C.O. No. 3074 of 2014 is allowed with the aforesaid direction. However, I make no order as to costs. Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.