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2019 DIGILAW 293 (CAL)

SANDIP NANDI v. NITAI CHAND NANDI

2019-02-28

ARINDAM MUKHERJEE, BISWANATH SOMADDER

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JUDGMENT : ARINDAM MUKHERJEE, J. 1. Nitai Chand Nandi, one of the son of Baikuntha Nath Nandi and Banalata Nandi both since deceased filed a Partition & Administration suit impleading his three brothers Nilkanta Nandi, Krishna Nath Nandi and Sandip Nandi respectively as defendant nos. 1,2 and 3. Nilkanta has died during the pendency of the suit and his two sons Somnath Nandy and Ranodeep Nandy have been substituted as defendant no. 1(b) and 1(c). Records reveal that Baikuntha had made and published his last will and testament on 24th April, 1976 wherein his eldest son Nilkanta was appointed as executor. This will was probated on 16th December, 1986. It also appears that in 1993 a settlement was arrived at by and between the sons of Baikuntha which was recorded in writing but not registered. Under such settlement each sons of Baikuntha was allotted specific Lots on 1/4th basis. 2. After the institution of the suit the writ of summons was duly served upon the defendants, and their learned advocate entered appearance on 23rd September, 2009. None of the defendants, however, filed any written statement to contest the suit. In such circumstances, the suit was decreed ex parte on 14th July, 2010. The decree was in final form for declaration as claimed in claim (a) and claim (c) of the plaint. There was, however, a preliminary decree in terms of claim (b) of the plaint. A commissioner of partition was appointed with the liberty to engage a valuer for the purpose of valuing the property to enable allotment of 1/4th demarcated share to the plaintiff and 3/4th share to the defendants treating the defendants jointly to be one block. 3. The valuer who is an empanelled valuer of this Court on being appointed by the Commissioner Partition surveyed the property, and after hearing the parties submitted his valuation report on the basis whereof the commissioner of partition prepared his report and submitted the same. 4. After about five years from the submission of the valuation report, the defendants took exception to the said report on 2nd November, 2013 by filing two applications being G.A. No. 1613 of 2015 and G.A. No. 1599 of 2015. G.A. No. 1613 of 2015 was filed jointly by defendant no. 1(c) and defendant no. 2, while the other application was filed by defendant no.3. G.A. No. 1613 of 2015 was filed jointly by defendant no. 1(c) and defendant no. 2, while the other application was filed by defendant no.3. The said two applications were dismissed by an order dated 14th December, 2015.This order was carried on in appeal. The appeal was disposed of by an order dated 9th February, 2016. The relevant portion of the said order is set out hereinbelow:- "In that view of the matter, we find no ground to interfere with the present impugned order. However, we make it clear that if there is wrongful valuation of the property without taking into consideration, any other material facts or if there is any other valuation report of the properties which is contra to the valuation now made, it is always open to the parties, irrespective of whether it is plaintiff or the defendants, to place such materials before this Court and seek equity so far as the treatment of the parties." 5. Inspired by the observations made in the order dated 9th February, 2016, the appellant engaged a valuer, namely, Soumitra De for valuation of the property which appears to be a ploy to reopen the valuation report which by dint of the orders dated 14th December, 2015 and 9th February, 2016 had achieved finality. The applications being G.A. No. 2114 of 2016, G.A. No. 2354 of 2016, G.A. No. 3589 of 2016 and G.A. No. 944 of 2016 were disposed of by a common order dated 24th August, 2017. The relevant portion of the said order reads as follows:- "The defendant-applicant along with the other defendants armed with the said observations filed three sets of applications. The purpose of the said applications is to reopen the issues already decided by the order dated 14th December, 2015. The learned Counsel representing the said defendants in one voice submitted that there are observations made by the Hon'ble Division Bench with regard to identification of1/4th share of each of the defendants in the suit property and on the basis of such observations separate applications are now filed seeking allotment of their respective shares by metes and bounds. What the applicants have possibly missed out or overlooked, may be ignorantly or purposely, is that in my earlier order by which the commissioner of partition allotted lot-A to the plaintiff and lot-B to the defendants has not been interfered with by the Division Bench. What the applicants have possibly missed out or overlooked, may be ignorantly or purposely, is that in my earlier order by which the commissioner of partition allotted lot-A to the plaintiff and lot-B to the defendants has not been interfered with by the Division Bench. The learned Counsel for the defendants have failed to demonstrate from the order of the Hon'ble Division Bench that this finding has been reversed and/or diluted by the Hon'ble Division Bench. There cannot by any doubt that before a final decree is passed, the Court needs to be satisfied that the valuation of the respective so that the equities are maintained. The Court should be cautious to see that by reason of an allotment no unjust enrichment is caused to a particular group. The defendant no. 3 possibly inspired by the order of the Division Bench appointed another valuer who appear to have made a visit to the premises in question, but denied entrance to the portion under occupation of the plaintiff. The plaintiff shall permit the said valuer to visit the portion under occupation of the plaintiff in order to enable the valuer to make a valuation report strictly in accordance with the preliminary decree that the defendants should be treated as the owner of 3/4th share and the plaintiff as 1/4th share. The said valuer shall take into consideration that the earlier valuation in question made on 26th July, 2013 and the said valuer should ascertain the position as it existed on that date. If any improvement is noticed that should be separately indicated in the report. Needless to mention, that the valuer shall, upon notice to the parties, visit the said premises for the purpose of carrying out this order." 6. Despite the learned Single Judge granting the defendant no.3/appellant to have the valuation done by his valuer though the valuation report of the valuer engaged by the Commissioner of Partition had been accepted, the defendant no.3 /appellant, could not complete the valuation within time and continued with the same even after expiry of the time period. The defendant no.3/appellant could not produce the report of the said valuer even after four months from the order dated 24th August, 2017. The defendant no.3/appellant could not produce the report of the said valuer even after four months from the order dated 24th August, 2017. The learned Judge while disposing of the application made by the defendant no.3/ appellant, inter alia, for extending the time to complete the valuation categorically held that, there was no plausible explanation offered for not being able to carry out the directions passed by the Court on 24th August, 2017. 7. The defendant no.3/appellant filed a recalling application being G.A. No. 319 of 2018 for recalling of the order dated 16th January, 2018 by which his application, inter alia, for extension of time to complete the valuation was dismissed. The said application was dismissed by an order dated 7th February, 2018, which reads as follows:- "This Court is not satisfied with the grounds for which the Court should revisit the order dated 16th January, 2018. The application, accordingly, stands dismissed. However, there shall be no order as to costs." 8. Being aggrieved by and dissatisfied with the order dated 7th February, 2018 defendant no. 3/appellant has preferred the instant appeal. Before the learned Single Judge as also before us, the defendant no.3/appellant has tried to elucidate the incident of non-cooperation by the plaintiff and the other defendants in carrying out the valuation as a result whereof, defendant no.3/appellant was allegedly unable to complete the valuation through the valuer appointed by him in terms of the order dated 24th August, 2017. 9. We find that the Court while passing the order dated 24th August, 2017 had directed the plaintiff to permit the said valuer to visit the portion under his occupation. The order also clearly held that the defendant should be treated as the owner of the 3/4th share and the plaintiff as 1/4th share. It was, therefore, incumbent upon the defendant no. 3/appellant to immediately bring to the notice of the Court when he faced with alleged non-cooperation from the plaintiff and other defendants. The defendant no.3/appellant has admittedly failed to do so, and allowed the time to pass away. It further appears from the allegations that, there was an unregistered written settlement between the parties by and under which the property was divided into lot-A, lot-B, lot-C and lot-D. Lot-A was allotted to the plaintiff, lot-B was allotted to defendant nos. 1(b) and 1(c), that is, heirs of deceased defendant no. It further appears from the allegations that, there was an unregistered written settlement between the parties by and under which the property was divided into lot-A, lot-B, lot-C and lot-D. Lot-A was allotted to the plaintiff, lot-B was allotted to defendant nos. 1(b) and 1(c), that is, heirs of deceased defendant no. 1, lot-C was allotted to defendant no. 2 and lot-D was allotted to defendant no. 3/appellant. The defendant no.3/appellant is also trying to implement such settlement pursuant to the valuation report of the valuer appointed by the Commissioner of Partition having been affirmed by the orders dated 14th December, 2015 and 9th February, 2016. The defendant no. 3 appellant has also tried to create an artificial barrier between the defendants though, they stood firm jointly as against the plaintiff, right from the beginning. We have also noticed the decree dated 14th July, 2010, wherein the plaintiff has been directed to be allotted his demarcated 1/4th portion. The defendants which includes the defendant no.3/appellant were conspicuously absent at the time of passing of such decree and, as such, the Court treated the defendants jointly to be the owner of 3/4th share. This decree still subsists. The defendant no.3/appellant being absent at the initial stage thereby allowed the decree to be passed. Subsequently, the defendant no.3/appellant approached the Court at a much belated stage and failed in all stages. The defendant no.3/appellant cannot be allowed any further opportunity to have a valuer appointed to dislodge the plaintiff's claim particularly when the decree in favour of the plaintiff still subsists. As it is more than eight years have passed from the passing of the decree dated 14th July, 2010. The said suit, therefore, cannot be allowed to be dragged on in one pretext or the other by the defendants and in particular by the defendant no.3/appellant when an opportunity was granted by the learned Single Judge even after the valuation report having been affirmed. 10. We, therefore, find no reason to interfere with the order dated 7th February, 2018. The appeal and the connected application are thereby dismissed. However, there shall be no order as to costs. Urgent photostat certified copy of this order/judgment, if applied for, be supplied to the parties on a priority basis.