IMPORTANT POINT
A Partition Commissioner's report requires the author's evidence for validity; objections must be addressed before final decrees in partition cases.

JUDGMENT :

Supratim Bhattacharya, J.

1. The instant miscellaneous appeal has been preferred by the appellant/defendant being aggrieved by and dissatisfied with the Judgment and decree dated 06.03.2017 passed by the Ld. Additional District Judge, 1st Court Hooghly, in Title Appeal No. 22 of 2016.

2. Through the impugned judgment the Ld. First Appellate Court has passed an order to the effect that the title appeal be and the same is allowed on contest without cost thereby setting aside the judgment and decree dated 16.01.2016 passed by the Ld. Civil Judge (Sr. Divn.), 1st Court, Hooghly passed in Title Suit No. 384/1995. Through the said order the suit has been remanded back to the Ld. Trial Court with the direction to hold partition commission only on the point of construction of a separate septic tank and drain by the respondent to discharge the foul water generated from the allotted portion of the respondent and if necessary to award owelty to the affected party for such relocation and construction of septic tank and drain.

3. Facts before the Trial Court

The instant lis involves partition of the suit property. The plaintiff Ashoke Kumar Mallick who is the respondent herein has instituted the instant lis in the year 1995 against the defendants namely Hukum Chand Mallick, Smt. Jyotsna Mallick, Smt. Aparna Mallick and Debranjan Mallick who is the appellant herein.

After adjudication, preliminary decree was passed by the Ld. Trial Court declaring that the plaintiff namely Ashoke Kumar Mallick has ½ share in the suit property while the defendant No.1 namely Hukum Chand Mallick has ¼ share and the remaining defendants namely Smt. Jyotsna Mallick, Debranjan Mallick and Smt. Aparna Mallick altogether have ¼ share in the suit property.

4. Ultimately after transfer of undivided shares by the co-sharers through registered deed, presently Debranjan Mallick, the appellant/defendant and Ashoke Kumar Mallick the respondent/plaintiff are the owners of moiety share in respect of the suit property.

5. Earlier the Trial Court had appointed a Partition Commissioner who had submitted his report suggesting the allotments.

6. The Ld. Trial Judge had accepted the report of the Ld. Partition Commissioner holding that there is no infirmity in the report.

7. Against the said order of the Ld. Trial Court an appeal was preferred and the Ld. First Appellate Court had held that the allotments were not made in blocks, as a result of which the report of the Ld. Partition Commissioner was not accepted. The Ld. First Appellate Court had remanded the suit back to the Ld. Trial Court.

8. Against the order of the Ld. First Appellate Court a miscellaneous appeal had been preferred before the Hon’ble Court being FMA No. 995 of 2013.

9. The Hon’ble Division Bench came to the finding that the First Appellate Court had rightly held that the allotments were not made in blocks and therefore the report of the Ld. Partition Commissioner was not just and proper. The Hon’ble Division Bench thereby affirmed the order of remand passed by the Ld. First Appellate Court and had requested the Ld. Trial Judge to appoint a partition commissioner preferably who was appointed earlier in the instant lis and had directed the Ld. Trial Court to obtain a report from the Ld. Commissioner taking into consideration that the plaintiff and the defendant have moiety shares in the property mentioned in the suit.

10. After the passing of the said order the self same Ld. Partition Commissioner namely Ranjit Kumar Bodhak was appointed by the Ld. Trial Judge, who had submitted the earlier report dated 07.02.2005, to furnish a fresh report to give effect to the partition of the suit property in blocks.

11. Thereafter the Ld. Commissioner has submitted the second report on 03.12.2013.

12. The defendant filed written objections on 24.01.2014 and 24.04.2015 against the Commissioner’s report.

13. In spite of objection been filed by the appellant/defendant No.3 against the report of the Ld. Partition Commissioner, the