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2017 DIGILAW 9 (CAL)

Krishna Chouhan v. Kamli Chouhan

2017-01-04

ISHAN CHANDRA DAS, JYOTIRMAY BHATTACHARYA

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Jyotirmay Bhattacharya, J. : 1. This first appeal is directed against the final decree passed by the Trial Court in the partition suit on 6th December, 2013 in Title Suit No. 15 of 2005 at the instance of the defendant/appellant. 2. On the joint prayer of the learned counsel appearing for the parties, we have decided to hear out the appeal itself on merit on the basis of the materials available before us by dispensing with the requirement of filing paper books in this appeal. The lower court records have already been brought. As such, we have the privilege to consider the lower court records while hearing this appeal. 3. By the preliminary decree passed by the learned Trial Court on 14th March, 2011, the plaintiffs were declared as 8 annas owner of the suit property. By the said preliminary decree, the defendant was declared to be the 8 annas owner of the suit property. The said preliminary decree was modified by us while disposing of the appeal being FAT 35 of 2012 today to the extent that all the legal representatives of the original plaintiff viz. Maniklal Chouhan who were substituted in place of Maniklal Chouhan in the suit after his death including the other left out heir of Maniklal Chouhan viz. Bhim Chouhan @ Vim Nunia being the added respondent no. 1(f) therein jointly inherited the 8 annas share of their predecessor viz. Maniklal Chouhan. Thus, the respondent nos. 1(a) to 1(e) as well as the added respondent being respondent no. 1(f) were declared to be the 50 % owner of the ‘Ka’ schedule property. The declaration of the share of the defendant viz. Krishna Chouhan to the extent of remaining 8 annas share in ‘Ka’ schedule property was not disturbed by us, while the first appeal arising out of the preliminary decree passed by the learned Trial Court, was disposed of. 4. In this appeal arising out of the final decree, the said Bhim Chouhan @ Vim Nunia has also applied for his addition as respondent in this appeal. 5. He, being the necessary party in the appeal as his share in the suit property has already been declared in the preliminary decree, we allow his prayer for addition as added respondent in this appeal. 6. We thus, direct the concerned department to add the Bhim Chouhan @ Vim Nunia as added respondent no. 5. He, being the necessary party in the appeal as his share in the suit property has already been declared in the preliminary decree, we allow his prayer for addition as added respondent in this appeal. 6. We thus, direct the concerned department to add the Bhim Chouhan @ Vim Nunia as added respondent no. 1(f) in this appeal. 7. His application for addition of party being CAN 4899 of 2015 is thus, allowed. 8. Let us now consider the merit of this appeal in the facts as stated above. 9. Final decree was passed by the learned Trial Court on the basis of the commissioner’s report dated 23rd January, 2013. The total area of land comprising in ‘Ka’ schedule was 1.72 acres is the subject matter of the suit in respect of which preliminary decree has been passed in the partition suit. As per the preliminary decree, the plaintiffs viz. the respondent nos. 1(a) to 1(e) and the added respondent viz. 1(f) will jointly get 86 decimals of land in the ‘A’ schedule of the plaint. Similarly, the defendant will get 86 decimals of land in the suit property. Two allotments were shown in the partition plan. The western portion of the suit plot measuring 175'-0'' X 214' –6'' having an area of land = 86 decimals has been allotted to the plaintiffs and the rest portion of the suit plot having an equal area of land of 86 decimals has been allotted to the defendant. The valuation of those two allotments is equal to each other. 10. No objection has been given by any of the parties to the report of the Advocate Commissioner. 11. We do not find any apparent illegality in the allotments made by the learned advocate commissioner in favour of the parties according to their declared share in the preliminary decree. 12. We thus, do not want to disturb the final decree passed in the said partition suit however; with this rider that the allotment which was given to the plaintiffs will be the exclusive allotment of the legal representatives of the Maniklal Chouhan, since deceased being the plaintiffs/respondent nos. 1(a) to 1(e) in this appeal along with other heir of Maniklal Chouhan viz. Bhim Chouhan @ Vim Nunia being the added respondent no. 1(f) in this appeal. 13. The commissioner’s report is made part of the final decree. 14. 1(a) to 1(e) in this appeal along with other heir of Maniklal Chouhan viz. Bhim Chouhan @ Vim Nunia being the added respondent no. 1(f) in this appeal. 13. The commissioner’s report is made part of the final decree. 14. The appeal is thus, disposed of with the above modification. The appeal is thus, disposed of. 15. Urgent Photostat certified copy of this order, if applied for, be supplied to the Learned advocates for the parties immediately.