DILIP KUMAR MAHAPATRA Vs. BELA MAHAPATRA

JUDGEMENT

(1.) CHALLENGE is to the order no.395 dated December 7, 2007 passed by the learned Civil Judge (Senior Division), Third Court, Medinipur in Title Suit No.67 of 2006 thereby rejecting an application filed by the coplaintiff/ defendant no.2.

(2.) THE short fact is that one Anil Chandra Mahapatra instituted a title suit being Title Suit No.120 of 1964 before the learned Sub-Ordinate Judge, First Court at Midnapore for partition of the suit properties as mentioned in the schedule of the plaint. THE suit was decreed in the preliminary form in terms of the solenama of June 3, 1969. THEreafter, one Advocate commissioner was appointed and he submitted his report. THE final decree for partition was passed on November 3, 1971. THE stamp duty was submitted on September 18, 1971 and the final decree was engrossed on the stamp paper on November 3, 1971. THE learned commissioner assessed the valuation of the suit property at Rs.60,000/- and he allotted the share to the four co-owners equally having the value of the property to the extent of Rs.15,000/- each. THE coplaintiff/ defendant no.2 had 1/4th share in the suit property and he wanted to purchase the share of the three other co-owners by paying a total wealthy money of Rs.45,000/- in toto. THE coplaintiff / defendant no.2 filed an application under Order 9 Rule 13 of the C.P.C. for setting aside the final decree and that application was converted into a misc. case being Misc. Case No.5 of 1972. THE said misc. case had been disposed of on January 3, 2006 for non-prosecution. Now, the co-plaintiff/defendant no.2 is praying for depositing a sum of Rs.45,000/- as money as per final decree. That prayer has been rejected by the impugned order. So, this application has been preferred.

(3.) THE contention of the Mr. Mahato is that consideration money shall be determined on the date of filing of the application and since the application was filed in the year 1972, the money as assessed earlier should be considered and his client should be permitted to purchase the entire suit property by paying a sum of Rs.45,000/- only to the other three co-owners in equal share. In support of his contention, he has relied on the decision of AIR 1987 Cal 210, AIR 1991 SC 700, 75 CWN 195 and AIR 1979 Cal 79 to the effect that the relevant date for determining the valuation under Section 4(1) of the Partition Act would be the date when the member shareholder undertakes to buy the share of the transferee provided such undertaking is given after share of the transferee has been ascertained by the Court in the preliminary decree. In the instant case, question of transfer to the outsider did not arise. All the four co-owners held partition of the suit property by filing a solenama and thereafter, a learned commissioner was appointed and he submitted his report assessing the valuation of the property in the year 1972. THE decisions referred to relates to claim for purchase by a co-sharer when transfer was made to an outsider. It is not the situation. In the instant case preemption has been sought for under Section 3 of the Partition Act.