M. H. S. ANSARI, ASIT KUMAR BISI

( 1 ) PETITIONER/defendant No. 4 has filed the instant application for review of the judgment and order passed by this court on 27-3-2000 in F. A. No. 395 of 1984 arising out of Title Suit No. 20 of 1971 of the Fifth Court of the learned Subordinate judge, Alipore, South 24- Parganas.

( 2 ) THE facts leading to the instant application for review may briefly be narrated thus. An appeal being F. A. No. 395 of 1984 was preferred by the appellants against the judgment and decree dated 9-3-83 passed by the learned Subordinate Judge, 5th court, Alipore in a final decree proceeding in Title Suit No. 20 of 1971. The original defendant No. 2 was the appellant on whose demise his heirs have been substituted in his place. Premises No. 63 is a dwelling house and a part of the said premises had been allotted to the appellant. There is ony one stair case which had been allotted to defendant No. 4. It was submitted by the learned Advocate for the Appellant in the course of hearing of the appeal that as some rooms in the first floor had been allotted in favour of his client, the stair case ought to have been kept joint and in support of the said contention reliance had been placed on miras joint property and partition at Page 361 wherein the law in this regard had been stated in the following terms :"a courtyard or staircase belonging to the co-sharers have to be used by the co-owners without prejudicially affecting or putting the other co-owner to a detriment. Even a courtyard or stair case which cannot be conveniently partitioned must be kept common for the use of all the co-owners. If a co-owner in a suit for partition opposed the partition of the courtyard and stair case belonging to the co-owners as incapable of partition, but the trial Court partitioned them and the first appellate Court affirmed such partition, the matter came up before the Punjab High court in second appeal. It was argued by the defendants that the courtyard and stair case and the platform are incapable of partition. Mahajan J. of the Punjab High Court has observed that according to Mitakshara and Vyavahara Mayukh the rights of way and rights of well and water belonging to joint family are indivisible and if there is no evidence that at the partition of the family estate they were divided the law will hold that they continue to retain the character of indivisibility attached to them by law having regard to the nature of the rights in question. The learned Judge has extended this principle of Hindu law in respect of the courtyard, platform and stair case and set aside the decree for partition and declared that they shall be held common by the parties as they are incapable of partition. "

( 3 ) RELIANCE had also been placed on shantaram Balkrishna v, Waman Gopal wadekar reported in AIR 1923 Bombay 85 and Dina Nath v. Mansa Ram reported in air 1973 Pun] and Har 253 in this regard. While deciding the appeal, the Division bench fully analysed the matter in the light of the principles of law mentioned in its judgment and held that the stair case in question should remain joint and the decree of the learned Court below has been modified to the extent that the stair case in question shall remain joint.

( 4 ) AGGRIEVED, the petitioner/defendant no. 4 in whose favour the stair case was originally allotted has sought review of the judgment and order passed by the Division bench in the said appeal. It has been contended by Mr. D. Roy Chowdhury the learned advocate for the petitioner/defendant No. 4 that without exclusive allotment of the stair case the portion allotted in favour of the petitioner will serve no fruitful purpose and since there is an error of law in findings of the Division Bench that the stair case cannot be allotted in favour of any person and the law requires that the same should be kept common such error should be rectified by reviewing the judgment and order passed by the Division Bench in the said appeal.

( 5 ) MR. S. Dasgu

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