The main legal point established in the judgment is that the partition of property should be fair and in accordance with the nature of the land and the respective possession of the parties. The court also emphasized that previous judgments should only be applied if the factual matrix of the cases are similar.

JUDGMENT :

Siddhartha Roy Chowdhury, J.

1. Challenge in this appeal is to the judgment and final decree passed by the learned Civil Judge, Senior Division, 1st Court, Contai in Title suit no. 112 of 1999 on 10th April, 2000 and 20th July, 2009 respectively. For proper appreciation of the lis, facts in brief are indicated herein below.

2. The suit property was originally owned by Haraprosad Giri, Panchanan Giri and Banabehari Giri having 1/3rd share each. After the demise of Banabehari Giri his 1/3rd share devolved upon the son Subimal Giri and two daughters i.e. defendant no. 8 and predecessor of defendant nos. 3 to 7. The defendant no. 1 purchased the share of Subimal Giri, the son of Banabehari Giri. The 1/3rd share of Haraprosad Giri was acquired by his son Adhar Giri and after his death Lalmohan Giri and Bablu Giri two sons of Adhar Giri, Rohini Giri, the widow and Sandhyarani Giri, the daughter acquired said 1/3rd share of Adhar Giri. The plaintiff purchased the share of Sandhyarani Giri and Rohini Giri on 13th February, 1998. The defendant no. 1 purchased the share of Bablu Giri and Lalmohan Giri.

3. After the demise of Panchanan Giri his son Ananta Giri stepped into his shoes and sold 18 decimal of land to the defendant no. 2. Widow, son and five daughters of Ananta inherited the rest of the property acquired by Ananta. Four daughters of Ananta transferred their share by way of gift to Mayarani, wife of Rajaram, Madhabi the other daughter exchanged her share with Rajaram on the basis of registered deed of exchange. Rajaram and Mayarani sold their property to plaintiff and thus plaintiff acquired ‘Ka’ schedule property by purchase which is comprising within plot no. 799 having an area of 59 1/2 decimal of land out of 155 decimal of land. During L.R. settlement possession of the plaintiff was taken note of in the revenue record. Since the defendants did not agree to amicable partition, the plaintiff filed the suit.

4. The defendant nos. 1 and 2 contested the suit by filing written statement denying all allegations made against them. It is their specific case that defendant no. 1 purchased entire 1/3rd share of Banabehari from his legal heirs and also purchased half share of Hiranmay i.e. the son of Adhar and defendant no. 2 purchased 18 decimal of land from the son of Panchanan thus jointly they acquired 95 1/2 decimal of land. The defendants further contended that the plaintiff has been possessing the western portion of suit plot while they have been possessing the eastern portion. The defendants adverted further that defendant nos. 3 to 8 do not have any right title interest over the suit property. The defendants also expressed their willingness to get the property partitioned.

5. Learned Trial Court upon considering the evidence on record was pleased to pass the preliminary decree declaring inter alia that the plaintiff has title over 59 1/2 decimal of land and the defendant nos. 1 and 2 have jointly own 951/2 decimal of land in the ‘Kha’ schedule property while defendant nos. 3 to 8 jointly do not have right title interest therein. Both the parties were directed to effect partition by metes and bounds amicably within two months from the date of passing of decree i.e. on 10th April, 2000. But as a matter of fact, the parties failed to effect partition by metes and bounds and an Advocate Commissioner was appointed to effect such partition in terms of preliminary decree.

6. Learned Advocate Commissioner, Sri Arup De relayed the suit property with the help of settlement map 1954 to 1957 using 100 links steel chain, tape, peg etc. surveyed the suit plot no. 799 and opined that valuation of the land throughout the plot is same. Learned Commissioner allotted 59 1/2 decimal of land to the plaintiffs and 95 1/2 decimal of land to the defendants out of which 4 decimal of land was culled out for the passage running on the south western side of the suit plot no. 799 leading to public road. The report of the learned Commissioner was subm