Ibrahim Khan vs Hadis Khan & Ors
2021 Latest Caselaw 4999 Cal

23.09.2021

PG S.A. 2608 of 2001

Ibrahim Khan Vs.

Hadis Khan & Ors.

Mr. Gopal Chandra Ghosh.......for appellant

Mr. Ghosh, learned advocate appears on

behalf of appellant, who was defendant no. 1 in the

suit for partition. He submits, claim in the suit was

for partition and demarcation of respective portion of

plaintiffs and defendants, to declare their rights and

preliminary decree and final decree on actual

measurement. Referring to judgment of the trial Court

he submits, while with the ordering portion his client

has no grievance but in body of the judgment there

was finding regarding entitlement to three rooms

constructed by his client in plot no. 3258. This

finding was erroneous since the evidence revealed, his

client constructed the rooms. Even though there was

no mention of the rooms in the ordering portion but

the passage in the judgment regarding entitlement to

the rooms cannot be accepted by his client. The

passage relied upon in the judgment is reproduced

below:

"......So, considering the materials on record and having regard to the circumstances of the case I hold that the defendant no. 1 alone has not constructed

all the 3 rooms on the suit property at plot no. 3258 and he alone is not entitled to get the 3 rooms. No other evidence or witnesses is coming (page.19) to prove that the younger brother of defendant no. 1 has forcibly occupied one room. I think the rooms occupied by the present 3 brothers should be given to them....."

Referring to judgment of the lower appellate Court he

submits, there was simple reiteration of the finding.

We admit the appeal on following question to

be answered.

"In a preliminary decree declaring shares of parties following the judgment, can said decree include, in addition to the shares declared, entitlement on possession ?"

Let lower Court records be called for.

Appellant shall put in requisites for preparation of

paper books and thereafter issuance of notice of

appeal.

Liberty to mention the appeal for hearing

before the learned single Judge having determination,

when made ready.

(Arindam Sinha, J.)

(Sugato Majumdar, J.)