(Abu Horaira & Ors vs State Of West Bengal & Ors.)
2022 Latest Caselaw 146 Cal

4
jdt.




       20.01.2022
         jb.

                                 W.P.A. 23828 of 2019
                    (Abu Horaira & Ors. vs. State of West Bengal & Ors.)




                    Mr. Samim Ahmed
                    Mr. Arka Maiti
                    Ms. G. Pervin
                                   .... For the Petitioners

                    Mr. Chandi Charan De
                    Ms. Chandana Ghosh
                                   .... For the State

                    Mr. M. P. Gupta
                    Mr. Ayan Mitra
                    Ms. A. Panja
                                         .... For the Private Respondent

It is contended on behalf of the petitioners that

despite there being a preliminary decree for partition of

the property in question by a civil Court in a suit for

partition by and between the parties, the Sub-Divisional

Magistrate, on an application filed by the private

respondent issued notice upon the petitioners on 16th

October, 2019 for deciding the land dispute between the

parties. Learned counsel has taken the Court to an

order of the Sub-Divisional Magistrate and Sub-

Divisional Officer, Basirhat, North 24 Parganas passed

on 4th December, 2019 which suggests that it was

directed that a survey be conducted in respect of the

plot in question mentioning the possession of the

different possessors in the plot.

Learned counsel for the petitioners prays for an

order in terms of prayer (a) of the petition and submits

that the Sub-Divisional Officer has no authority to deal

with the title and possession in respect of the property

in view of the preliminary decree for partition granted

by a competent civil Court.

It is submitted on behalf of the respondents that

the writ petition is premature and the Sub-Divisional

Officer has only served notice upon the parties fixing a

date for hearing of the matter and the petitioners

instead of placing all relevant documents before the

Sub-Divisional Officer has approached this Court in the

present writ petition which is not permissible in law.

Respondents further submit that subsequent to filing of

the writ petition, the petitioners filed an application

before the Sub-Divisional Officer praying for supply of

copy of the application filed by the private respondents

before the Authority.

Admittedly, in the partition suit filed by and

between the petitioners and the private respondent, a

preliminary decree has been granted by a competent

civil Court. It is trite law that the Sub-Divisional Officer

has no authority to decide the right, title, interest and

possession in respect of any property, more so when a

preliminary decree for partition of the property exists.

In view of the same, the order impugned dated 4th

December, 2019 passed by the Sub-Divisional

Magistrate and Sub-Divisional Officer, Basirhat

(annexure P/7 to the writ petition) be quashed.

The writ petition is disposed of with liberty to the

parties to file all relevant documents pertaining to the

judgment and decree passed by the civil Court within 7

days from date. The Sub-Divisional Officer, shall peruse

such documents and dispose of the application pending

before him within a fortnight thereof.

With such observations and directions, W.P.A.

23828 of 2019 is disposed of.

There shall be no order as to costs.

Since no affidavit has been invited, allegations

contained in the writ petition shall be deemed not to

have been admitted.

Urgent certified website copy of the order, if

applied for, be given to the parties on compliance of

requisite formalities.

(Suvra Ghosh, J.)