Research › Search › Judgment

Calcutta High Court · body

2020 DIGILAW 140 (CAL)

Vishwanath Patwari v. Ramesh Kumar Poddar

2020-02-05

SAUGATA BHATTACHARYYA, SOUMEN SEN

body2020
JUDGMENT Soumen Sen, J. - The plaintiffs and the defendants have purchased the property by a registered deed of conveyance dated 31st March, 1982 from one Vinod Kumar Sadani. By virtue of the said purchase, the plaintiffs became the owners of 20 per cent share in the property in question. It is undisputed that the plaintiffs acquired 20 per cent ownership right in the first schedule property and remaining 80 per cent was acquired by the defendants. In April 1982, the first schedule property was partitioned mutually by private arrangements and on such partition the plaintiffs were allotted second schedule property of the plaint. The defendant no.3 is a partnership firm wherein the defendant nos.1 and 2 along with their other relatives are partners. 2. This matter was earlier adjourned in order to enable the defendants to buy the shares of the appellants in the property in question. Learned counsel for the defendants/respondents on instruction has submitted that the defendants/respondents are not in a position to buy the share of the plaintiffs in the property at the valuation fixed by the valuer. 3. Hence, the appeal is taken up for consideration. 4. The appellants are the owners of 20 per cent share in the property in question. Although in the plaint, it is claimed that the plaintiffs are in actual possession of the demarcated portion of the suit property but the plaintiffs were unable to establish the said claim. The suit was dismissed on the ground that the plaintiffs have not prayed for partition. The plaintiffs were able to establish their right of 20 per cent shares in the property in question. The defendants/respondents are not disputing the share of the plaintiffs in the property. In the fitness of things, the plaintiffs should have claimed partition of the suit property. The plaintiffs, however, proceeded on the basis that they should be entitled to occupy their property representing their 20 per cent share as owners thereof. Prayer (a) of the plaint although has not been happily couched, but it is implicit from the said prayers read with the other averments in the plaint that the plaintiffs essentially are claiming a partition of the property in question. 5. Prayer (a) of the plaint although has not been happily couched, but it is implicit from the said prayers read with the other averments in the plaint that the plaintiffs essentially are claiming a partition of the property in question. 5. In view of the fact that there is no disagreement between the parties as to the ownership of the property to the extent of 20 per cent, by consent of the parties we pass a preliminary decree of partition of the suit property. It is declared that the plaintiffs are having of 20 per cent share in the first schedule property. The decree under challenge is set aside. 6. In the event the parties are unable to amicably divide and demarcate the property according to the declared shares, the appellants shall be entitled to approach the learned Trial Judge for appointment of an Advocate Commissioner for demarcation of the suit property and deliver possession of the demarcated portion representing 20 per cent share of the plaintiffs in the first schedule property to the plaintiffs. It is needless to mention that the plaintiffs shall also be entitled to 20 per cent share of all the usufructs of the property in question including rental income or occupational charges, if any. 7. It is made clear that the Advocate Commissioner shall be entitled to appoint an Engineer, if so required. The parties shall pay remuneration of the Advocate Commissioner to be determined by the learned Trial Court according to the declared shares in the property in question, that is to say 20 per cent of the expenses shall be borne by the plaintiffs and the remaining 80 per cent share shall be borne by the defendants. 8. Insofar as the other claims are concerned in the plaint, we have perused the order under appeal and we find that the plaintiffs were unable to prove the said claim of damages. We do not find any reason to interfere with such findings after considering the evidence on record. 9. The Department shall draw up the decree as expeditiously as possible. LCR be sent down immediately to the learned Court below. 10. The appeal stands disposed of accordingly. 11. Urgent photostat certified copy of this order, if applied for, be given to the parties, upon compliance of necessary formalities.