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CALCUTTA HIGH COURT
Moushumi Bhattacharya, J.
Narayani Debi Dhananta @
Agarwal and Ors. —Appellants
versus
Sawar Dhanania and Ors. —Respondents
Civil Suit No.148 of 2002
Decided on 18.1.2019
Counsel for the Parties:
Rajeev Kumar Jain, Advocate, Abhirup Chakraborty, Advocate, Sayantan Chatterjee, Advocate, Apurva Daga, Advocate, Sudip Deb, Advocate, K.K. Pandey, Advocate, Shatrunjoy Bose, Advocate
IMPORTANT POINT
Partition—Once court passes preliminary decree, it is duty of court to ensure that matter is referred to Commissioner for division unless parties themselves agree as to manner of division.
Headnote:Property Law – Partition – Once court passes preliminary decree, it is duty of court to ensure that matter is referred to Commissioner for division unless parties themselves agree as to manner of division – -Defendant no.10 will be entitled to a final decree in terms of Report of Commissioner of Partition – Property will be divided by metes and bounds as per Scheme II of preliminary report.
Held: The appointment of the Commissioner of Partition and the role given to him would be best explained by a decision cited by counsel appearing for the defendant no.10; Prasad Bubna Vs. Sita Saran Bubna & Ors. reported in, (2009) 9 SCC 689, where the Supreme Court held that once a court passes a preliminary decree, it is a duty of the court to ensure that the matter is referred to a Commissioner for Division unless the parties themselves agree as to the manner of division. The relevant paragraph from the decision is set out below: –
“The function of making a partition or separation according to the rights declared by the preliminary decree (in regard to non-agricultural immovable properties and movables) is entrusted to a Commissioner, as it involves inspection of the property and examination of various alternatives with reference to practical utility and site conditions. When the Commissioner gives his report as to the manner of division, the proposals contained in the report are considered by the court; and after hearing objections to the report, if any, the court passes a final decree whereby the relief sought in the suit is granted by separating the property by metes and bounds. It is also possible that if the property is incapable of proper division, the court may direct sale thereof and distribution of the proceeds as per the shares declared.”
Although this decision was more concerned with whether a litigant after securing a preliminary decree, would have to file an application for final decree, the Supreme Court was of the view that the focus of a court should be on the early disposal of cases and securing relief for the party who has approached the court. It was held that no application for a final decree is called for (and not contemplated under the provisions of The Code of Civil Procedure either). Although this decision was cited at the very beginning on the issue whether the defendant no.10 would be required to file a separate application for final decree, there are several passages which serve as effective reminders as to the duty of courts to expedite the process of dispute resolution.
In view of the above, the defendant no.10 will be entitled to a final decree in terms of the Report of the Commissioner of Partition dated 20th December, 2017. The property will thus be divided by metes and bounds as per Scheme II of the preliminary Report dated 20th March 2017 in two Lots as indicated in the Plan and the relevant photographs annexed to the Report. (Paras 21 and 22)
Suit decreed.
Moushumi Bhattacharya, J.—The defendant no.10 in the instant suit prays for a final decree in the instant suit in terms of a Report dated 20th December 2017 filed by the learned Commissioner of Partition, who was appointed by way of a preliminary decree dated 20th April, 2005.
2. The instant suit is one for declaration that the plaintiff is entitled to 1/4th share in the premises No. 46 Shakespeare Sarani, Kolkata-17 and for partition of the said premises as described in a Schedule annexed to the plaint together with allotment of the respective divided shares to the parties. There have been various changes in the status of the defendants since 2002 (when the suit was filed) and the only contesting parties today are the plaintiff no. 3 and the defendant no.10. The defendant no.10 claims to have purchased the shares of the other material defendants in relation to the premises in question. A brief statement of the factual background in which the defendant no.10 has made a prayer for decreeing the suit, should first be stated.
3. A preliminary decree was passed on 2oth April 2005 appointing a Commissioner of Partition to partition the property in four equal parts together with a direction to appoint a Surveyor/Valuer for that purpose.
4. By an order dated 15th March 2013, the defendant no.10 was added as a party in the suit on the basis that the defendant no.10 has purchased the shares of some of the co-owners of the property. It was further recorded in the order that the defendant no.10 had earlier filed a suit for specific performance of an agreement dated 13th October 1982 being C.S. No. 619 of 1985 wherein a consent decree was passed on 29th April 2004. In terms of the consent decree, the co-owners were to receive consideration as stated in the consent decree and the defendant no.10 (described as petitioner in the order dated 15th March 2013) came to hold the shares of the defendant nos. 1, 2, 5, 7 and 9 aggregating to 58.33% share in the said property. By reason of the aforesaid, the defendant no.10 became the owner of an undivided 97.73% in the property. The preliminary decree dated 20th April 2015 records that the defendant no.10 bought the shares of the plaintiffs as well as the defendants except the share of the plaintiff no.3 to the extent of 2.27% of the property being the subject matter of the instant partition suit.
5. By an order dated 3rd August 2015, the instant suit was directed to proceed for adjudication regarding passing of a final decree pursuant to the preliminary decree dated 20th April 2005. In this order, a suit filed by the plaintiff no.3 claiming for pre-emption in relation to 25% or 1/4th of the property was taken note of and it was further noted that the partition of the property would proceed leaving aside 25% of the property for adjudication of the suit for preemption filed by the plaintiff no.3.
6. The defendant no.10 filed an application thereafter for partitioning the property in the ratio of 97.73%; 2.27% in which an order was passed on 15th October 2015 whereby the learned Commissioner of Partition was directed to partition the property by metes and bounds keeping aside 25% of the property as claimed in the suit for pre-emption filed y the plaintiff no.3. The order records that no one appeared on behalf of the plaintiff no.3 to oppose the application.
7. The plaintiff no.3 challenged the above order and by an order dated 19th January 2016, the appeal was dismissed as withdrawn.
8. In the meantime, the plaintiff no.3 filed an appeal from an order passed in an execution proceeding whereby a Division Bench of this Court on 19th April 2016 had been pleased to direct the learned Commissioner of Partition to complete the partition of the property by metes and bounds in terms of the order dated 3rd August 2015 within a period of four weeks. The Division Bench further directed that the shares in the property would have to be demarcated by way of 25% and 75% keeping in view the outcome of the pre
