Calcutta High Court (Appellete Side)
Sk. Golam Maula (Sultan) & Ors vs Sk. Sariful Haque & Ors on 14 February, 2022
14.02.2022
SL No.2
Court No.8
(gc)
SAT 419 of 2018
With
CAN 1 of 2018
(Old No: CAN 8014 of 2018)
with
CAN 4 of 2019
(Old No: CAN 9659 of 2019)
Sk. Golam Maula (Sultan) & Ors.
Vs.
Sk. Sariful Haque & Ors.
(Via Video Conference)
Mr. S.S. Arefin,
...for the Appellants.
Mr. Rabindranath Mahato,
Mr. Aritra Shankar Ray,
...for the Respondents.
Re: CAN 4 of 2019
(Old No: CAN 9659 of 2019)
This is an application for substitution of the legal
heirs of deceased respondent No.1, Sk. Sariful Haque, who
died on 1st July, 2019. The names of the legal heirs are
mentioned in Paragrah 7 of the petition. They are all
major and sui juris.
In view thereof, the prayer for substitution is allowed.
The name of the respondent No.1 shall be struck out and
substituted by legal heirs as prayed for in the petition.
Accordingly, the application being CAN 9659 of 2019
stands disposed of.
Re: SAT 419 of 2018
With
CAN 1 of 2018
(Old No: CAN 8014 of 2018)
The appellants have preferred the second appeal
arising out of the judgment and decree dated 30th June,
2016 passed by the learned Additional District Judge, 6th
Court, Paschim Medinipur reversing the judgment and
decree dated 20th August, 2010 passed by the learned
Civil Judge (Senior Division), 3rd Court, Paschim
Medinipur in Title Suit No.99 of 2006.
The learned Counsel for the present appellants have
submitted that the second appeal is required to be
admitted as the First Appellate Court has completely
misdirected its mind in allowing the plaintiff to purchase
the shares of the defendant No.1 to 12, 18 and 20 to 24 in
the suit property as a result whereof the appellants would
be deprived of the common enjoyment of the tank, which
was held to be impartible by the learned Trial Court and
kept it in the joint possession for common enjoyment of
the purpose.
The said submission appears to be contrary to the
stand taken by the appellants before the First Appellate
Court. Before the First Appellate Court, it appears that
the learned Counsel for the respondent Nos.18, 22 and 23
submitted that they are the sons and brother of the
appellant and they have no objection if the plaintiff could
purchase the remaining share of the defendants. The
learned Counsel for the defendant
Nos.11,13,14,15,16,21,25 and 26 before the First
Appellate Court submitted that they had already
transferred their meagre share in the suit tank to the
plaintiff for which they had got no objection if the plaintiff
is allowed to purchase the remaining meagre share of the
defendants. The main contesting defendants in the first
appeal were the respondent Nos.1 to 10. It is submitted
on their behalf that it is true that they had meagre share
in the suit tank but having regard to the fact that the
plaintiff is the owner of 3/5th share in the suit property for
which, if the prayer of the plaintiff under sections 2 and 3
of the Partition Act can be allowed subject to an open sale
to be arranged and it should be confined among the co-
owners and if the plaintiff pays the highest valuation, he
can get the relief as per his prayer. It was on the basis of
such submission, the learned First Appellate Court
modified the preliminary decree passed by the learned
Trial Court by declaring that the plaintiff-appellant has
3/5th share in the suit property and the suit is decreed in
preliminary form. The plaintiff-appellant is permitted to
purchase the shares of the respondent Nos.1 to 12, 18 and
20 to 24 in the suit property, having more than moiety
share at a valuation assessed by the Partition
Commissioner, which will be determined in a subsequent
proceeding. The appellant is permitted to take steps
accordingly.
Mr. S.S. Arefin, learned Counsel appearing on behalf
of the appellants submits that some of the contesting
defendants are also appellants herein and all are
questioning the order of the First Appellate Court.
Once the parties have put their suggestion to the
Court with regard to the distribution of shares and
modalities for settlement of the impartible estate (tank), it
is no more open for such parties to question the order
based on such suggestion. Moreover, we do not find that
the views taken by the First Appellate Court is contrary to
law in relation to partition among the co-owners.
In a suit for partition, it shall be the endeavour of the
Court to ensure that in the event the property is found to
be impartible to the meagre share of a particular co-sharer
if can be adjusted by way of owelty, the Court can explore
it to put an end to all the controversy. In the given case,
as would appear from the order of the First Appellate
Court that most of the defendants have agreed to allow the
application of the plaintiff filed under Section 2 and 3 of
the Partition Act to purchase the tank to the highest
bidder among the co-owners. In fact, most of the
defendants have sold their shares and some of the
defendants are willing to sell their remaining shares in
favour of the plaintiff. It was on such consideration, the
First Appellate Court passed the aforesaid order. The
order was principally on the suggestion of the parties. The
endeavour was to work out a solution on the basis of the
suggestion given by the parties.
In view thereof, we do find any substantial questions
of law for which the second appeal needs to be admitted.
The second appeal fails.
Accordingly, the second appeal being SAT 419 of 2018
and the application being CAN 1 of 2018 (Old No: CAN
8014 of 2018) stand dismissed.
However, there shall be no order as to costs.
All parties shall act on the server copies of this order
duly downloaded from the official website of this Court.
(Ajoy Kumar Mukherjee, J.) (Soumen Sen, J.)
