Bipasha Raha & Anr vs Smt. Purnima Das Chowdhury & Anr
2022 Latest Caselaw 422 Cal

09.02.2022
 Ct. 21
 D/L 24
  ab



                             C.O. 1610 of 2021
                            (Via Video Conference)

                           Bipasha Raha & Anr.
                                   -Vs-
                    Smt. Purnima Das Chowdhury & Anr.



             Mr. Gopal Chandra Ghosh,
             Mr. Sib Sankar Bandopadhyay,
                                               ... for the petitioners

             Ms. Sudeshna Basu Thakur,
                                         ... for the opposite parties



                  The present application under Article 227 of

             the Constitution of India is at the instance of the

             plaintiff's/petitioner's directed against the order

             dated 22.03.2021 passed by Civil Judge (Senior

             Division) 9th Court, Alipore, in Misc. Case No. 9 of

             1999, whereby the valuation report submitted by

             valuer commissioner Banibrata Mukherjee was

             rejected and order for appointment of an Engineer

             Valuer Commissioner to hold fresh commission for

             assessment of valuation of the disputed property

             was passed.

                  The facts giving rise to the present revisional

             application in gist are that premises no. 162/19
                          2




Lake Garden,    renumbered as 113 Lake Garden

was originally owned by two brothers namely Dilip

Dutta   and   Pradip   Dutta   each   having   50   %

undivided share. Pradip Dutta during his life time

transferred his undivided 50 % share in the suit

property in favour of Mihir Kumar Das, the

predecessor in interest of the present opposite

parties on 29.07.1994.

     The legal heirs of Dilip Dutta for partition of

their undivided 50 % share in the disputed property

admitting that the remaining 50 % share of Pradip

Dutta is in possession of Mihir Kumar Das have

filed Title Suit no. 33 of 1997. Such Partition Suit

was decreed in preliminary form on 16.03.1998.

Being aggrieved an Appeal was preferred by Mihir

Kumar Das being F.A. No. 107 of 1999 alleging

the property was already partitioned between the

two brothers by way of mutual settlement or by

metes and bounds. The Appeal was dismissed

affirming preliminary decree by the Hon'ble Division

Bench of this Court and with the findings that

plaintiffs and defendant no. 3/ Appellant had

undivided moiety share in the suit property and the

same was unpartitioned although some specific
                           3




portion were in possession of the parties by mutual

arrangement on 20.06.2006.

      After the dismissal of the appeal the legal

heirs of Dilip Dutta filed an application under

Section 4 of the Partition Act, for pre-emption of 50

% share of Mihir Kumar Das a stranger in the

family dwelling property on 16.03.1999. Such

application has been registered as Misc. Case No. 9

of 1999. The learned Court below allowed the

application under Section 4 of the Partition Act

holding legal heirs of Dilip Dutta are entitled to

preempt the share of Mihir Kumar Das the

predecessor in interest of the present opposite

parties upon payment of market value as stood on

4th March 1999 towards the 50% undivided share

of the defendant no.3 (since deceased) in the suit

property.

      In order to determine the market value of the

50% share of Mihir Kumar Das, a commissioner

was appointed in the year 2007,      but who     had

failed to submits the report till 2015 and as such

the   commissioner    was     discharged   and    Sri

Banibrata Majumder, a Chartered Engineer as well

a lawyer was appointed as Engineer         valuation
                             4




commissioner to assess the maket value of 50%

share of Mihir Kumar Das on 16.02.2017.

      The learned Commissioner submitted his

report on 14.11.2017, but the court below refused

to   accept   as   during       cross   examination   the

commissioner admitted that he did valuation work

as per instruction of the plaintiffs. Further, the

Court below refused to take into consideration the

annexure 1 to 7 alleged to have been obtained from

the office of A.D.S.R. Alipore, for want of stamp,

seal and signature of the of A.D.S.R. on the same.

Therefore, the learned Court below decided to

appoint a fresh engineer valuation commissioner to

assess the valuation of the 50% of the opposite

parties   in the disputed property as it stood on

04.03.1999

.

Perused the report of the commissioner and

his evidence lying in the record. From photographs

of the alleged disputed building it is seen the

property in question to be a three storied building

situated at Lake Garden in South Kolkata.

The commissioner has assessed the valuation

of the three storied building standing on 3 Cottahs

land in a place like Lake Garden to be only Rs.

26,06,826/- in the year 1999. It is a matter of fact

that Lake Garden Area is surrounded by Shyama

Prasad Mukherjee Road, Rabindra Sarovar and

Prince Anwar Shah Road and near to famous South

City Mall. The area is well connected by metro rail

and as well by normal train lines. Therefore, the

valuation given by the commissioner in respect of

the three storied structure standing on 3 Cottahs of

land in a place like Lake Garden to be only

Rs.26,06,826/-appears to be grossly undervalued.

That apart from the annexeture 1 to 7 the e-

valuation reports supplied by the Directorate of

Registration and Stamp Revenue shows the market

value of the property/Apartment situated in Lake

Garden to be above Rupees one corer and which

the court below has failed to accept for want of seal,

signature and stamp of the concerned authority on

the same.

Having regard to such facts this Court does

not find any illegality and infirmity in the impugned

order passed by the learned Court below.

However, this court is of view the learned

Court below instead of appointing a fresh engineer

valuation commissioner ought to have called for

valuation report of the disputed property directly

from the office of A.D.S.R. Alipore or from

Directorate of Registration and Stamp Revenue as it

was in the year 1999, keeping in view the facts the

petitioners have filed the partition suit long ago in

the year 1997 and had obtained order of

preemption of the shares of the opposite parties in

Misc. Case no.9 of 1999 under section 4 of the

Partition Act on 16.05.2007 and still the case is

pending only for valuation report.

In order to avoid delay and to render justice to

concerned party without further delay, the learned

court below is requested to call for valuation report

of disputed property as it was in the year 1999 from

the office of A.D.S.R., Alipore. More so, now

Government of West Bengal has fixed different

circle value of different types of properties situated

in different parts of Bengal for the purpose of

registration charges and stamp duty. Whatever may

be the actual consideration agreed between the

parties circle value is taken into consideration for

the purpose of registration charges and stamp

duty. The learned court below may take circle value

of the suit property as it was in the year 1999 as a

yard stick for assessment of the market value along

with other factors such as the age of the building

and its location with local amenities and if not

possible then by calling volume books of other sale

deeds of the area which were executed in the year

1999 or in 1998 or in 2000 for calculation of the

average value of the disputed property.

Accordingly, C.O. 1610 of 2021 is disposed

of.

Interim order, if any, stands discharged.

There will be no order as to costs.

In view of the order made above affidavits are not

invited. Allegations made shall be deemed to be denied.

All parties shall act in terms of the copy of the

order downloaded from the official website of this Court.

Urgent Xerox certified photocopies of this

judgment, if applied for be given to the parties upon

compliance of the requisite formalities.

( Kesang Doma Bhutia, J.)