IN THE HIGH COURT AT CALCUTTA CIVIL APPELLATE JURISDICTION APPELLATE SIDE BEFORE:

The Hon’ble Justice Soumen Sen And The Hon’ble Justice Smita Das De FA 113 of 2009 Gayatri Pal since deceased represented by Abul Hossain Vs.

Netai Nandi @ Netish Nandi & Ors.

For the Appellant : Mr. Rabindra Narayan Dutta, Adv., Mr. Sibasish Ghosh, Adv., Mr. Hare Krishna Halder, Adv., Mr. Partha Pratim Roy, Adv., Mr. Soham Banerjee, Adv.

For the Respondents : Mr. Sukanta Chakraborty, Adv., Mr. Subrata Mukherjee, Adv.

Hearing concluded on : 8th May, 2025 Judgment on : 23rd May, 2025 Soumen Sen, J :

1. The appeal is arising out of a judgment and decree dated

11th December, 2008 passed by the learned Civil Judge, Senior Division at Kandi in a partition suit filed by Netai Nandi & Ors. against Smt. Gayatri Pal & Ors. The learned Trial Court decreed the suit in preliminary form whereby it was declared that the plaintiffs and the defendant No.2 jointly had 2/3rd shares in the scheduled described property and the defendant No.1 has 1/3rd shares. The order provided that in the event no amicable arrangement is arrived at between the parties within the three months from the date of the decree the court will proceed further for final decree and if so required, a survey passed pleader/commissioner should be appointed through court.

2. The defendant No.1 is Smt. Gayatri Pal. She was aggrieved by the said preliminary decree. During the pendency of the appeal, Gayatri died and one Abul Hossain filed an application for substitution on the ground of devolution of interest. The said application was allowed on 3rd May, 2023 with a rider that the objection with regard to the continuation of the proceeding by the present appellant shall be considered at the time of hearing of the appeal.

3. Mr. Sukanta Chakraborty, the learned Counsel for the respondents has raised a preliminary objection with regard to the continuation of the appeal at the instance of Abul Hossain on the ground that Gayatri Pal had transferred her interest in the dwelling house in favour of the present substituted appellant during the subsistence of an order of status quo and any instrument of conveyance or documents executed in violation of the order of the status quo would be non-est.

4. However, we decided to hear all points, although in hindsight it appears that the appellant is pushed to an insurmountable difficulty in dislodging the preliminary objection raised by the respondent.

5. Mr. Rabindra Narayan Dutta, learned Counsel appearing on behalf of the appellant has submitted that Gayatri during her lifetime executed a deed of conveyance in respect of her share in the suit property in favour of the present appellant. That Gayatri had an interest in the suit property is not in dispute. The learned Trial Court has decreed the suit by declaring shares in respect of the scheduled property in excess of the share claimed in the plaint and without there being any amendment carried out during the pendency of the partition suit or immediately thereafter before the preliminary decree was drawn up. The decree itself is contrary to the pleadings. It is submitted that even if it is assumed that the present appellant may not have acquired any interest the fact remains that Gayatri was allowed to continue with the appeal by a coordinate bench presided over by the Hon’ble Justice Jyotirmoy Bhattacharya, a former Chief Justice of this court on 17th March, 2015 and any declaration of share in favour of Gayatri according to her original claim would only inure to the benefit of the present substituted appellant as in the deed itself Smt. Gayatri had referred to the pending litigation.

6. The plaint was placed extensively to show the devolution of interest, nature of the claims of the plaintiffs and the basis of the claims for the share in the schedule property. It is submitted that the property originally belonged to Gadadhar Pal who died intestate was the original owner of the suit plot along with other immovable propert