Calcutta High Court (Appellete Side)
Sri Ramaprasad De vs Sri Sambhu Das on 7 June, 2023
7.6.2023
6
Ct. no. 652
sb
C.O. 1980 of 2019
Sri Ramaprasad De
Vs.
Sri Sambhu Das
Mr. Susenjit Banik
Mr. Nilratan Banerjee
Mr. Aniruddha Mitra
Mr. Mrinal Saha ....for the petitioner
Mr. Anshuman Chakraborty ...for the O.P no. 1
Mr. Prasanta Bishal ..for the O.P nos. 2(a) to 2(c),
3(a) to 3(c) and 4
Being aggrieved by order no. 50 dated March 15,
2019 passed by the learned Civil Judge (Senior
Division), Additional court at Chinsurah, Hooghly in
Title Suit no. 67 of 2016, present application under
Article 227 of the Constitution of India has been
preferred. By the impugned order, the learned court
below was pleased to direct both the plaintiff and
defendant nos. 1, 3 and 4 to file commission report
which has been made by two private surveyors.
It has been contended by the petitioner that the
plaintiff no. 1/opposite party herein filed aforesaid suit
against the present petitioner and the opposite party
nos. 2,3 and 4 inter alia for a decree of partition in both
preliminary and in final form by declaring their
proportionate share in respect of the suit property. The
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petitioner herein initially appeared as defendant no. 2 in
the said suit by filing written statement and in the
written statement, he made a specific averment that
plaintiff no. 1 in collusion with the defendant nos. 1 and
4 and trying to grab excess share in the suit property.
Accordingly, the petitioner herein filed an application in
the said suit seeking transposition of the petitioner from
the category of defendant to the category of plaintiff and
accordingly he was transposed as plaintiff no. 2. The
court below by his judgment and decree dated 20th
February, 2017, was pleased to pass decree in the said
Title Suit no. 67 of 2016 in preliminary form and
thereby declaring the share of the parties in the said
suit. In the judgment, the court below was further
pleased to direct to make amicable partition of the suit
schedule property by metes and bound within three
months from the date of passing the decree and further
opportunity was given to the parties for appointment of
partition commissioner in case parties fail to effect
partition by metes and bounds in terms of share. The
opposite party no. 1 being the plaintiff no. 1 in the said
suit, the present petitioner and the opposite party nos.
2,3 and 4 jointly thereafter filed applications under
Order XXVI Rule 13 of the Code of Civil Procedure for
appointment of partition commissioner, in order to
demarcate the respective portion of share of the parties
in the suit property. The petitioner alleged that the
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learned court below in the absence of the petitioner, was
pleased to appoint one Sri Srinath Deb Goswami as
partition commissioner and the plaintiff no. 2 was
directed to pay the entire commissioner's fees of Rs.
6,000/-. Thereafter, the plaintiff no. 1 and defendant
nos. 2,3 and 4 i.e. opposite party herein filed a joint
application praying for an order to pass final decree in
the said suit on the basis of sketch map which was
prepared by two private surveyors engaged by the said
opposite parties. In the said application, it has been
categorically stated by the opposite party that one of
sons of the petitioner was present at the time of survey
work in the schedule property but the petitioner did not
sign in the sketch map prepared by the said private
surveyors.
The petitioner submits that the petitioner has filed
specific objection contending that the opposite parties
are claiming partition whimsically ignoring the court's
order for appointment of partition commissioner to
make effective partition by metes and bounds. The court
below was pleased to appoint commissioner vide order
dated 19.4.2018 and directed to pay an amount of Rs.
6,000/- to the commissioner towards commissioner's
fee but said amount was not paid by plaintiff no. 2. So
the parties were compelled to appoint private
commissioner who has also conducted commission work
and has given report.
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However, at the time of hearing, learned counsel
for the opposite party submits that they now want to
deposit initial commissioner's fee of Rs. 6,000/- as
directed vide order no. 42 and after completion of the
commission work, the commissioners total fee may be
directed to be shared equally by the parties.
In view of above, the order impugned dated
15.3.2019
is hereby set aside. The opposite parties
herein shall pay the commissioner's fee of Rs. 6,000/- to
the partition commissioner Sri Srinath Deb Goswami
within a period of two weeks from the date of
communication of the order and learned Commissioner
will conduct the commission work and will submit a
report without being influenced by any previous
commission work or commission report, within a period
of 16 weeks from the date of his appointment. Learned
court below will issue writ of commission as soon as
initial cost of commissioner's fees would be paid by the
opposite parties. At the end, all the parties will bear the
total cost of commission work in equal share.
Accordingly, C.O. 1980 of 2019 is disposed of.
Urgent photostat certified copy of this order, if
applied for, be given to the parties upon compliance of
all requisite formalities.
(Ajoy Kumar Mukherjee, J.)
