The court held that the tea garden, which was admittedly part of the joint family property, should have been included in the schedule of the preliminary decree for partition.

I.P.MUKERJI

1. FOUR applications were heard by me together. The first three were made by the defendant group. This group comprises the heirs of the original defendant Sankar Dhur.

2. THESE defendants are very unfortunately placed. Defendant No. 1(a) is Sm. Kalpana Dhur. Defendant No. 1(b) and 1(c) are Tamosha Dhur and Rishav Dhur. Kalpana is the widow of Sankar. Tamosha is their daughter and Rishav, son. Sankar died in 2006 of cancer, at the age of about 48 years, going by the medical records annexed to this application. His family is occupying a portion of premises No. 63, Serpentine Lane, Kolkata- 14. They do not want to be displaced from this place. The first application is G.A. 2691 of 2007. It seeks setting aside of the partition decree dated 21st December, 2004.

3. THE second is G.A. No. 1410 of 2011. It prays for vacation of the order dated 6th July, 2010 of Sanjib Banerjee J. in G.A. No. 1669 of 2007. I was not taken through the details of the application G.A. 1669 of 2007. The order dated 6th July, 2010 records that it was an application for appointment of a Special Officer for sale of two properties and that although the Court was passing no order, nevertheless liberty was reserved to the applicant plaintiffs to apply for sale of those properties or either of them if they could bring a purchaser.

4. THE third application G.A. No. 1412 of 2001 is for setting aside of the same order that is 6th July, 2010 in G.A. No. 490 of 2009. I was not taken also to the contents of the application G.A. 490 of 2009 but the order of 6th July, 2010 records that it was a similar application as G.A. NO. 1669 of 2007 for sale, but it was for sale of one of the properties and that it was not passing any order.

5. THE fourth application G.A. 993 of 2011 was made by the plaintiffs for sale of the property described as premises No. 63A, Serpentine Lane, Kolkata- 14 in favour of Mr. Basudeb Dutta for a consideration of Rs.80,00,000/-. Many many years earlier, an almost similar partition suit was filed, being Partition Suit No. 451 of 1982 with the only difference that Sankar Dhur was one of the plaintiffs. On 7th October, 1999, the suit seems to have been decreed according to the Terms of Settlement signed by the parties and their advocates filed in court. The effect of this decree was that the parties did not want to proceed further with partition. But one recording in the Terms of Settlement is of great significance in disposal of this application. It is term No. 6 which is quoted below:

"It is recorded that in spite of best efforts by the Joint Receivers for taking possession of the Tea Garden belonging to the parties situate at Goreswar in the State of Assam due to disturbed condition prevailing there." Now, this partition suit was filed sometime in the year 2001. A preliminary partition decree was passed by this court on 21st December, 2004, ex parte.

6. THE case of the petitioner defendants in G.A. No. 2691 of 2007 is that during that time till his death in 2006, the original defendant Sankar Dhur used to be critically ill and it was not possible for him or his family to follow up proceedings in Court. It was much after his death in 2006 that his family was able to take steps to challenge the preliminary decree, as they do now.

7. THERE are four main points in the challenge (a) one property numbered as premises no. 91, Phears Lane, Kolkata 73 was not included in the properties for partition, (b) a tea garden in Assam, Ramgaon tea estate situated at Ramgaon, Assam was also not included, (c) room no. 75 on the 5th Floor at 9, Old China Bazar Street, Kolkata was also left out and (d) so was premises no. 82, Bowbazar Street, Calcutta.

8. THERE is no substance in the first point because paragraph 18 of the affidavit-in- opposition clearly mentions that this property was sold out long ago. There is also no substance in the allegation of non inclusion of room no. 75 on the 5th Floor at 9, Old China Bazar Street, Kolkata. I am satisfied o