2022 Supreme(Cal) 901

IN THE HIGH COURT OF CALCUTTA
I. P. Mukerji, Aniruddha Roy, JJ.
Sarmilee Dutta - Appellant
Versus
Barnali Dutta And Others - Respondent
APDT No. 8 of 2021, CS No. 438 of 1973, APO 83 of 2021, IA No. GA 1, 2, 3/2021
Decided On : 23-03-2022

Headnote:

The court condoned the delay in filing the appeal and admitted it. The court held that the impugned final decree was passed in a partition suit amongst the co-sharers and the right to claim of the plaintiff and defendant in a partition suit towards the joint estate are common and same on the basis of their respective shares. This right of a co-sharer is a substantive right whereas an application for condonation of delay in preferring an appeal is guided by a procedural law. Substantive right cannot suffer for procedural latches. The court also held that the impugned final decree and the appellate decree had duly been drawn up, completed and filed with the department, hence, both the said decrees stood perfected in terms of Rule 24 of Chapter XVI of the High Court Rules framed in its Original Side. It is to give full effect of the said Rule an order cannot be said to be perfected before it is filed, because until it is filed all the requirements of procedure cannot be said to have been complied with. The court further held that the impugned final decree dated July 05, 2017 does not warrant any interference by this Court of appeal. The said final decree dated July 05, 2007 stands affirmed and confirmed.

Fact of the Case:

The partition suit was filed in 1973 amongst the family members of one age old Bengali Mullick family of Kolkata. The said family had several joint properties. The subject matter of the present appeal is premises no. 237/P/1B Maniktala Main Road presently known as Sachin Sen Sarani, Kolkata (for short, the said premises) amongst others mentioned in the plaint. With the passage of time some of the original plaintiffs died and their heirs and legal representatives were substituted from time to time. Some of the parties to the instant appeal are the successors in interest of the original plaintiffs. Diverse interlocutory orders were passed in the said partition suit from time to time at the behest of the parties. Lokenath Mullick being the third plaintiff was the father and as such the predecessor in interest of the appellant. On April 02, 1980 (for short, the said 1980 family settlement) another family arrangement was entered into and executed by and between the co-sharers under which certain modifications were carried out in respect of the arrangements made under the said 1979 family settlement but the allotment made in respect of the said four tile sheds at the said premises in favour of the father of the appellant also stood affirmed. Pursuant to the direction made by a coordinate bench in its order dated august 14, 2006 and the direction made by the learned Single Judge on august 27, 2009 the commissioner of partition on May 20, 2011 had filed its final return on the basis of the valuation caused. On the basis of the said final return filed by the commissioner of partition the first defendant namely Somenath Mullick being the ninth respondent herein filed Ga No. 2542 of 2011 praying for a final decree for partition. On June 15, 2015 a final decree was passed in terms of the commissioner's return and direction was also made for sale of some of the lots as mentioned in the said return of the commissioner for partition. In 2015 the appellant filed Ga No. 3156 of 2015, inter alia, praying for recalling of the said final decree dated June 15, 2015. By an order dated September 30, 2015 the learned Judge dismissed the said application. Being aggrieved thereby an appeal was preferred by the appellant, when a coordinate bench by its order dated February 18, 2016 directed that upon payment of cost of Rs.1 lakh payable by the appellant to the first defendant, she would file her affidavit-in-opposition to the said Ga No.2542 of 2011. Such cost was paid and necessary affidavit was filed by the appellant. By an order dated November 08, 2016 the learned single bench disposed of the said Ga No. 2542 of 2011 and a final decree in terms of the commissioner's report was directed to be made. Directions were also made for sale of the properties mentioned in the some of the lots as suggested in the said report of the commissioner and the parties who were in possession of the immoveable properties in excess of their entitlement were directed to vacate such portions and make over the same to the first defendant. The commissioner was further directed to file a return after the allotment of shares. By an order dated March 10, 2017 the said order dated November 08, 2016 was recalled and the status was restored as it was subsisting immediately prior to the said order dated November 08, 2016. accordingly the said Ga No.2542 of 2011 was revived. By a judgment and order dated July 05, 2017 passed by the learned Single Judge the said Ga No. 2542 of 2011 was disposed of and the impugned final decree was passed in terms of the commissioner's return and, inter alia, the appellant was directed to vacate the portion in the said premises of which she was in occupation beyond her entitlement.

Finding of the Court:

The court held that the impugned final decree dated July 05, 2017 does not warrant any interference by this Court of appeal. The said final decree dated July 05, 2007 stands affirmed and confirmed.

Issues: 1. Whether the delay in filing the appeal should be condoned? 2. Whether the impugned final decree is valid and binding on the appellant? 3. Whether the appellant is entitled to the allotment of four tile sheds within the premises?

Ratio Decidendi: 1. The court held that the delay in filing the appeal should be condoned considering the facts and circumstances of the case and the merits of the appeal. 2. The court held that the impugned final decree is valid and binding on the appellant as it was passed after due consideration of all the facts and circumstances of the case and the appellant had the opportunity to participate in the proceedings. 3. The court held that the appellant is not entitled to the allotment of four tile sheds within the premises as the allotment made by the commissioner of partition was in accordance with the family settlements and the final report of the commissioner of partition.

Final Decision: The appeal was dismissed and the impugned final decree was affirmed and confirmed.