Calcutta High Court (Appellete Side)
Parbati Jana vs Anupama Sahoo & Ors on 7 January, 2021
07.01.2021 FAT 549 of 2019
Court No. 02
with
Item No. DL - 44
nandy
CAN 2 of 2019
(CAN 11637 of 2019)
(ORDER PASSED)
Parbati Jana
Vs.
Anupama Sahoo & Ors.
Mr. Mukteswar Maity, Advocate
......for the Appellant
Mr. Shyamal Chakraborty, Advocate
......for the Respondent Nos. 2(a) to 2(f)
Seen the report of the Stamp Reporter put on the
reverse of the first page of the memorandum of appeal.
It appears to us that the report is erroneous and,
therefore, should not be looked upon.
The appellant has deposited the costs imposed
by an order dated February 4, 2020. Let the receipt
produced before us be kept with the record.
CAN 2 of 2019
(CAN 11637 of 2019)
This is an application for stay of operation of the
impugned judgment and order dated March 31, 2015
passed by the learned Civil Judge (Senior Division),
First Court, Contai in Misc. Judicial Case No. 31 of
2011 arising out of Title Suit No. 178 of 2009, whereby
and whereunder an application under Section 4 of the
Partition Act was allowed.
The plaintiff/appellant filed a suit for partition and
separation of shares after acquiring a share in the joint
property and the said suit was decreed in preliminary
form. Subsequently, the predecessor-in-interest of the
respondent nos. 2(a) to 2 (f) applied for preemption
under Section 4 of the said Act and by the impugned
order the said application was allowed.
It is the specific stand of the learned Advocate for
the appellant that the property though categorized as
'Bastu' but a bare land, which would be evident from
the deed executed by the co-sharer in favour of his
client. It is thus submitted that Section 4 of the said Act
has no manner of application and the trial Court has
wrongly held that there was a dwelling house.
The learned Advocate for the aforesaid
respondents submits that, in fact, the property is
comprised in the dwelling house and a portion or a
share has been sold by the co-sharer to the present
appellant and the present appellant having applied for
partition as a stranger purchaser, there is no
impediment on the aforesaid respondents to exercise
the right of preemption under the aforesaid provision.
After hearing the respective Counsel, we feel that
limited point is involved in the instant appeal, which can
be conveniently decided without embarking upon the
usual formality required to get the first appeal ready for
hearing.
We, therefore, direct the respondent nos. 2(a) to
2(f) to put in the special messenger cost to bring the
lower court records through special messenger and
such cost shall be put in within a week from date.
Immediately upon receipt of such cost, office
shall ensure that the lower court records reach this
Court within two weeks therefrom and be tagged with
the instant file.
The preparation of paper book is dispensed with.
However, both the Counsel are permitted to rely upon
the documents at the time of hearing.
Pending disposal of the instant appeal, there
shall be a stay of operation of the judgment and order
dated March 31, 2015 passed by the learned Civil
Judge (Senior Division), First Court, Contai in Misc.
Judicial Case No. 31 of 2011 arising out of Title Suit
No. 178 of 2009.
The application being CAN 2 of 2020 (CAN
11637 of 2020) is thus disposed of.
We are informed that pursuant to the impugned
order the valuation of the share of the appellant has
been assessed and in fact, the same has been
deposited in the trial Court.
The trial Court is directed to invest the said
amount in a short term fixed deposit in any nationalized
bank and shall continue to renew the same until further
order.
Let the appeal be listed immediately upon arrival
of the lower court record.
(Kausik Chanda, J.) (Harish Tandon, J.)
