IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION APPELLATE SIDE C.O.1148 of 2022 Jagadish Chandra Mishra VS.

Smt. Bishnupriya Mishra & Ors.

For the petitioner :Mr. Tanmoy Mukherjee, Adv.

Mr. Kallol Kumar Maity, Adv.

Last Heard On :13.03.2025 Judgement On :21.03.2025 Bibhas Ranjan De, J. :

1. Challenge of this revision application is the judgement and order dated 29.08.2019 passed by Ld. Additional District Judge, 1^st Court, Paschim Midnapure in connection with Misc. Appeal no. 09 of 2017 whereby Ld. Appellate Court set aside the order no. 106 dated 12.01.2017 passed by Ld. Civil Judge, Senior Division, 1st Court, Paschim Midnapore in Judicial Misc. Case (for short J. Misc.) no. 04 of 2005, wherein Ld. Trial Judge set aside the final decree of partition dated 31.01.2003 on compromise in Title Suit no. 167 of 2002.

2. To cut a long story short, original owner of the suit property in respect of Title suit no. 167 of 2002, was one Kailash Mishra. After demise of said Kailsh Mishra his four sons namely Kartick Bhupati, Rajendra and Surendra affected one partition on 22^nd Sraban, 1339 BS by executing a memo of partition. Surendra, one of the brothers, died intestate in the year 1936 leaving behind his aforesaid three (3) brothers. Thereafter, Kartick died in the year 1941 living behind his two wives, namely Rukmini Bala & Charu Bala and a son Sitanath. After demise of Sitanath and two wives of Kartick, the entire share of Kartick revolved upon Sitanath’s wife, three sons and a daughter/opposite party herein. Subsequently, Bhupati died in the year 1981 leaving his four sons namely Bomkesha and Rishikesh from first wife, Jagadish and Parameshwar from second wife. Rajendra died in the year 1984 leaving his son Aditya and two daughters namely Mahamaya and Chhabirani. Further case is that, after demise of Surendra another partition was effected in the year 1953 wherein Sitanath obtained ‘ka’ schedule properties, Bhupati obtained ‘Kh’ schedule properties and Rajendra obtained ‘Ga’ schedule properties. Thereafter, Sitanath transferred properties from his share to third party admitting the partition effected in the year 1953. Bhupati also transferred all his share in favour of opposite party herein and to his three daughters. After demise of Bhupati, his two sons Jagadish/ petitioner herein and Parameshwar filed a Partition Suit no. 142 of 1985 which got dismissed for default. After demise of Sitanath his legal heirs/opposite parties herein brought a Partition Suit no. 167 of 2002 against the petitioners. That partition suit ended in compromise with the assurance of the plaintiff that self-acquired property would not be included in Solenama Petition. Suit was decreed in terms of Solenama. Subsequently, defendants of the suit found that the schedule of Solenama petition included their personal properties.

3. It is specific case of the defendants/petitioners herein that in the compromise decree more properties were allotted to some of the co-sharers in excess of their entitled share and property of 3rd party was also allotted to the parties to the suit.

4. The present petitioners filed one judicial Misc. Case no. 4 of 2005 under Order 22 Rule 3 read with Section 151 of the Code of Civil Procedure inter alia seeking cancellation of such compromise decree. On the grounds mentioned in paragraph 3.

5. Prior to embarking on merit, it would be prudent to revisit the Trial Court’s ultimate findings and juxtapose them with the appellate courts conclusion, thereby providing a comprehensive framework for analysis.

6. Ld. Trial Judge, sitting in J. Misc. case no. 4 of 2005, considered all evidence adduced by the parties to the case and also after taking the rival contentions of the parties into consideration, recorded the conclusion which runs as follows:- “… From the above discussion it appears that the original title suit for partition was filed and compromised suppressing material facts. Secondly, as the suit property was previously partitioned be