Sri Chandan Kumar Jana vs Smt. Kanaklata Panda & Ors
2022 Latest Caselaw 4181 Cal

                                       1



                      IN THE HIGH COURT AT CALCUTTA
                       CIVIL APPELLATE JURISDICTION
                              APPELLATE SIDE



    BEFORE:
    The Hon'ble Justice Soumen Sen
    And
    The Hon'ble Justice Siddhartha Roy Chowdhury


                                 FA 74 of 2010
                                     With
                                 CAN 1 of 2009


                           Sri Chandan Kumar Jana
                                           Vs.
                         Smt. Kanaklata Panda & Ors.


    For the Appellant                  : Mr. Amit Baran Dash, Adv.
                                           Ms. Ankana Sarkar, Adv.



    For the Respondents                : Mr. Soumen Kr. Dutta, Adv.

Mr. Sabyasachi Bhattacharjee, Adv.

    Hearing Concluded On               : 06.07.2022


    Judgment On                        : 13.07.2022

Siddhartha Roy Chowdhury, J:- Challenge in this appeal is to the

judgment and final decree passed by the learned Civil Judge, Senior

Division, 1st Court, Contai in Title suit no. 112 of 1999 on 10th April, 2000

and 20th July, 2009 respectively. For proper appreciation of the lis, facts

in brief are indicated herein below.

The suit property was originally owned by Haraprosad Giri,

Panchanan Giri and Banabehari Giri having 1/3rd share each. After the

demise of Banabehari Giri his 1/3rd share devolved upon the son Subimal

Giri and two daughters i.e. defendant no. 8 and predecessor of defendant

nos. 3 to 7. The defendant no. 1 purchased the share of Subimal Giri, the

son of Banabehari Giri. The 1/3rd share of Haraprosad Giri was acquired

by his son Adhar Giri and after his death Lalmohan Giri and Bablu Giri

two sons of Adhar Giri, Rohini Giri, the widow and Sandhyarani Giri, the

daughter acquired said 1/3rd share of Adhar Giri. The plaintiff purchased

the share of Sandhyarani Giri and Rohini Giri on 13th February, 1998.

The defendant no. 1 purchased the share of Bablu Giri and Lalmohan

Giri.

After the demise of Panchanan Giri his son Ananta Giri stepped into

his shoes and sold 18 decimal of land to the defendant no. 2. Widow, son

and five daughters of Ananta inherited the rest of the property acquired by

Ananta. Four daughters of Ananta transferred their share by way of gift to

Mayarani, wife of Rajaram, Madhabi the other daughter exchanged her

share with Rajaram on the basis of registered deed of exchange. Rajaram

and Mayarani sold their property to plaintiff and thus plaintiff acquired

'Ka' schedule property by purchase which is comprising within plot no.

799 having an area of 59 1/2 decimal of land out of 155 decimal of land.

During L.R. settlement possession of the plaintiff was taken note of in the

revenue record. Since the defendants did not agree to amicable partition,

the plaintiff filed the suit.

The defendant nos. 1 and 2 contested the suit by filing written

statement denying all allegations made against them. It is their specific

case that defendant no. 1 purchased entire 1/3rd share of Banabehari

from his legal heirs and also purchased half share of Hiranmay i.e. the

son of Adhar and defendant no. 2 purchased 18 decimal of land from the

son of Panchanan thus jointly they acquired 95 1/2 decimal of land. The

defendants further contended that the plaintiff has been possessing the

western portion of suit plot while they have been possessing the eastern

portion. The defendants adverted further that defendant nos. 3 to 8 do not

have any right title interest over the suit property. The defendants also

expressed their willingness to get the property partitioned.

Learned Trial Court upon considering the evidence on record was

pleased to pass the preliminary decree declaring inter alia that the

plaintiff has title over 59 1/2 decimal of land and the defendant nos. 1 and

2 have jointly own 951/2 decimal of land in the 'Kha' schedule property

while defendant nos. 3 to 8 jointly do not have right title interest therein.

Both the parties were directed to effect partition by metes and bounds

amicably within two months from the date of passing of decree i.e. on 10th

April, 2000. But as a matter of fact, the parties failed to effect partition by

metes and bounds and an Advocate Commissioner was appointed to effect

such partition in terms of preliminary decree.

Learned Advocate Commissioner, Sri Arup De relayed the suit

property with the help of settlement map 1954 to 1957 using 100 links

steel chain, tape, peg etc. surveyed the suit plot no. 799 and opined that

valuation of the land throughout the plot is same. Learned Commissioner

allotted 59 1/2 decimal of land to the plaintiffs and 95 1/2 decimal of land

to the defendants out of which 4 decimal of land was culled out for the

passage running on the south western side of the suit plot no. 799 leading

to public road. The report of the learned Commissioner was submitted

before the learned Trial Court to which the plaintiff raised objection.

Learned Advocate Commissioner was examined on oath and learned

Trial Court after considering the evidence of learned Advocate

Commissioner was pleased to accept the report of the learned Advocate

Commissioner, effecting partition by metes and bounds in terms of the

preliminary decree and was further pleased to pass final decree on 29th

July, 2009 treating the report of learned Advocate Commissioner, case

map, fold book as part of final decree with further direction that partition

will be effective only on drawing up of final decree on requisite stamp

papers to be submitted by parties.

The plaintiff being aggrieved by and dissatisfied with such mandate

of learned Trial Court filed this appeal.

Though the memorandum of appeal is taken out to assail the

judgment dated 10th April, 2000 and the final decree dated 28th July,

2009, learned Advocate for plaintiff/appellant confined his argument

assailing the final decree, passed by the learned Trial Court relying upon

the report of learned Advocate Commissioner.

It is contended that learned Commissioner allotted Ata land to the

defendant while arable land has been allotted to the plaintiff. Ata land is

costlier than that of arable land.

It is further contended that the Learned Partition Commissioner has

failed to ascertain the value of the portion allotted to the respective

parties, which is contrary to the provision of Order 26 Rule 14 of the Civil

Procedure Code as well as Order 26 Rule 10 of the Civil Procedure Code.

Learned Advocate for the appellant, took us to the oral testimony of

learned Partition Commissioner and adverted that learned Advocate

Commissioner did not take any evidence regarding possession of

respective parties which is absolutely necessary for just and fair partition.

Learned Advocate Commissioner allotted 4 decimal of land to the

defendants/respondents which was within the exclusive possession of the

plaintiff/appellant.

Drawing our attention to the pleadings of the defendants, it is

submitted that the Ali bandh was in joint possession of the parties to the

lis but learned Advocate Commissioner committed error in allotting the

said strip of land to the defendants/respondents exclusively and thereby

frustrated the very purpose of partition.

Learned Advocate for the plaintiff/appellant strenuously argued that

the trees standing on the suit property was allotted to the defendants but

without assessing the valuation and thereby the learned Advocate

Commissioner acted in detrimental the interest of plaintiff/appellant. To

butters his point learned Advocate for the appellant relied upon the

judgment passed by the Co-ordinate Bench of this Hon'ble Court in

Saraswati Devi and Ors. vs. Satya Narayan Gupta reported in AIR 1977

Calcutta at Page 99 and argued that in a suit for partition first the

subject matter should be ascertained and, thereafter, the subject matter

should be properly assessed and valued and for fair valuation of allotment

for the parties, the assets and liabilities of the joint properties should be

found out.

Refuting such contention of learned Advocate for the appellant,

learned Advocate for the defendants/respondents argued that no part of

plot no. 799 having an area of 1.55 decimal of land is Ata or high land. It

is admittedly "Jal/Jaljami". Since the parties acquired ownership in

respect of the suit property by purchase, learned Partition Commissioner

made allotment keeping in view the respective possession of the parties.

Learned Advocate for the respondent in course of argument took us to the

schedule of the plaint filed by the plaintiff/appellant and we find that the

suit property is having an area of 155 decimal comprised within plot no.

799 and by nature "Jal". Our attention is drawn Exhibit 2 R.S.R.O.R and

from that document we find that the nature of the land comprised within

plot no. 799 is "Jal". Admittedly the plaintiff/appellant is occupying the

western part of the suit plot while eastern part is occupied by the

defendants/respondents which the parties have acquired by purchase.

Therefore, in our view, learned Partition Commissioner did not commit

any mistake by not assessing the valuation of the property when the

nature of the entire plot of land 799 is uniform i.e. "jal".

Admittedly learned Trial Court declared title the plaintiff in respect of

591/2 decimal of land and 951/2 decimal of land to the defendants in the

preliminary decree.

Upon careful perusal of the report of the learned Partition

Commissioner and the evidence adduced by him, we find that the

Advocate Commissioner allotted 591/2 decimal of land to the

plaintiff/appellant and the defendants/respondents are actually given

911/2 decimal of land for all practical purposes and remaining 4 decimal of

land has been merged with the existing passage running on the south

west side of the suit plot leading to the road. The plaintiff in his plaint has

admitted the existence of that strip of land which is being used as passage

leading to the public road and the same is being used by both the parties.

This fact belies the claim of the plaintiff/appellant that the learned

Commissioner allotted the strip of land scooping out 4 decimal of land

from his allotment and thereby deprived the plaintiff/appellant. On the

contrary we find from the Exhibit B1 the deed of gift executed in favour of

defendant/respondent no. 1 the existence of the passage running on the

southern end of plot no. 799 which has further been depicted as the

passage for the purpose of ingress and egress. Learned Advocate

Commissioner scooped out 4 decimal of land from the allotment of

defendants/respondents as we find from the report of the Commissioner

and merged the same with the existing passage leading to public road,

and Exhibit B, B1 and C are eloquent about this passage on south-

western part of suit plot.

It is fact that learned Advocate Commissioner in course of his

evidence stated that he has allotted Ata land to the defendant and

agricultural land to the plaintiff but the document Exhibit 2 indicates that

nature of land is "Jal". It goes without saying that evidence percolating

from the document should always prevail over the evidence projected

through oral testimony. While we consider the oral testimony of learned

Commissioner regarding the nature of land in contradistinction with

Exhibit 2 the R.S.R.O.R., we find it to be "Jaljami". Therefore, we are not

inclined to attach any importance to the oral testimony of the learned

Advocate Commissioner about the nature of land. It is true 5 trees are

found standing on the ridge of the land allotted to the

defendant/respondent but at the same time it is equally correct that 4

decimal of land from the allotment of defendants/respondents is culled

out and mingled with the existing passage running on the south western

side leading to public road to be used the plaintiff/appellant as well.

We have perused the judgment of the Co-ordinate Bench pronounced

in Saraswati Devi & Ors. vs. Satya Narayan Gupta (supra) reported in

1977 Calcutta at Page 99. It is trite to say that the judgment should not

be considered to be a statute; in order to use a judgment as precedent, the

case in hand should be pari materia with the facts of the case decided.

The judgment pronounced in the case of Saraswati Devi (supra) was

passed on a different factual matrix involving movable and immovable

properties and as such the said judgment is not applicable in the appeal

under consideration.

In our view, learned Advocate Commissioner followed the procedure

properly as laid down under Order 26 Rule 14 of the Civil Procedure Code.

Rule 10 of Order 26 of the Civil Procedure Code, we are afraid, has

nothing to do with partition commission.

The report of the learned Advocate Commissioner in our considered

opinion does not suffer from any infirmity and we do not find any reason

to disagree with the wisdom of learned Trial Court in passing the final

decree based on the report of Advocate Commissioner. The appeal is

devoid of merit and is dismissed but without cost.

I agree

(Siddhartha Roy Chowdhury, J.)

(Soumen Sen, J.)