The importance of maintaining equity in property valuation and upholding decrees in partition suits.

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. 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 rega