Calcutta High Court (Appellete Side)
Murari Saha & Ors vs Smt. Bishakha Saha & Ors on 18 May, 2023
18.05.2023
Item Nos.01 & 02
Court No.32
Avijit Mitra
FA 28 of 2023
with
IA No. CAN 1 of 2023
with
IA No. CAN 2 of 2023
Sri Ananda Gopal Saha & ors.
with
Smt. Bishakha Saha & ors.
with
FAT 261 of 2022
with
IA No. CAN 1 of 2023
Murari Saha & ors.
Vs.
Smt. Bishakha Saha & ors.
Mr. Syed Julfikar Ali
...for the appellants
Mr. Partha Pratim Roy
...for the respondent nos. 1 to 3
Five daughters of one Balaram Saha, since
deceased instituted a partition suit against the other legal
heirs of Balaram Saha and legal heirs of one Manindra
Saha in respect of the properties mentioned in the
schedules A, B and C appended to the plaint. After
contested hearing, the learned Court below decreed the
suit in preliminary form declaring that the plaintiffs and
defendants are entitled to 1/11 th share each in the A, B
and C schedule properties.
Aggrieved thereby, three sons of Balaram Saha (in
Short, Balaram) have preferred an appeal being FA 28 of
2023 and the legal heirs of Manindra Saha also assailed
the judgment and decree passed in preliminary form in
an another appeal which was registered as FAT 261 of
2022.
During course of hearing both the learned
advocates, Mr. Roy and Mr. Ali submit that the dispute
cropped up in between the parties hereto have been
settled amicably out of Court. Accordingly one application
has been taken out being IA No.CAN 2 of 2023 in FA 28 of
2023 enumerating certain facts which are as follows :
"3) That in respect of Plot No.374 in Schedule A of
the Plaint, Balaram Saha had a area of 9 decimal
out of the 33 decimal. In plot No.377, Balaram Saha
had an area of 88 decimal out of the 1.32 acres of
land. Therefore, only the land of Balaram Saha are
partible.
4) In respect of Schedule B of the plaint in respect of
Plot No.328 Balaram Saha was the owner of 27
Decimal of land out of 1.25 acres. In respect of Plot
No.327/822, Balaram Saha was the owner of 65
decimal of land out of 68 decimal. Therefore only the
aforementioned land of Balaram Saha as mentioned
here are partible.
5) In respect of Schedule C as mentioned in the
plaint, which indicates plot No.500/1858 Sub plot
No.57, Balaram Saha was the owner of 1 decimal
(22.6 X 30 sq.ft.) of land out of 3 decimals and of the
said 1 decimal land (22.6 X 30 sq.ft.) out of 3
decimals of land is partible.
6) Therefore, the entire area as mentioned in the
schedule of the plaint is not partible and only the
partition of land of Balaram Saha as discussed
above is partible."
Both Mr. Roy and Mr. Ali consistently voiced that
Balaram had i) 9 dec. out of 33 dec. in plot no. 374 ,ii) 88
dec. out of 1.32 dec. in plot no. 377 , iii) 27 dec. out of
1.25 dec. in plot no. 328 , iv) 65 dec. out of 68 dec. in plot
no. 327/822 and v) 1 dec. out of 3 dec. in plot no.
500/1858.
Both the parties hereto admitted that only the
portions of land belonging to Balaram are Partible and
legal heirs of Balaram shall be entitled to 1/11 th share
each in respect of properties left by Balaram.
Treating the statements made in paragraphs 3 to 6
to the application being CAN 2 of 2023 and oral
submissions made on behalf of both the parties hereto as
an admission under Order XII Rule 6 of the Code, we are
inclined to dispose of both appeals and modify the
judgment and decree passed in preliminary form
accordingly.
Consequently, the appeal being F.A. 28 of 2023 and
F.A.T. no. 262 of 2023 are disposed of on admission.
Judgment and decree passed in preliminary form is
modified to the following extent:
That the plaintiffs and defendant nos. 1 to 6 shall
be entitled to 1/11th share each of i) 9 dec. out of 33 dec.
in plot no. 374 ,ii) 88 dec. out of 1.32 dec. in plot no.
377 , iii) 27 dec. out of 1.25 dec. in plot no. 328 , iv) 65
dec. out of 68 dec. in plot no. 327/822 and v) 1 dec. out
of 3 dec. in plot no. 500/1858.
Let a decree be drawn up accordingly.
(Partha Sarathi Chatterjee, J.) (Tapabrata Chakraborty, J.)
