MATI SHAW ALIAS MATILAL SHAW Vs. MOHAN SHAW

JUDGEMENT

(1.) This Court has heard the learned Advocates for the respective parties and has considered the relevant materials on record. Briefly, the facts of the case are as follows:

(2.) The defendant has thereafter filed the present second appeal, which was admitted for hearing on the following substantial questions of law by order dated 27th June, 2003:

(3.) The learned Advocate appearing on behalf of the defendant/appellant has submitted that records would show that the suit was filed by the plaintiffs/respondents for partition in respect of 65 decimals of land with structure and preliminary decree was passed accordingly. The said learned Advocate submitted that the learned partition commissioner acted illegally in submitting his report of partition in respect of 110 decimals of land i.e., 45 decimals in excess of the land which was described in the said preliminary decree. The said learned Advocate submitted that the learned Partition Commissioner could not have done the partition work in respect of 110 decimals, which was beyond the scope of the preliminary decree. The said learned Advocate submitted that without the amendment of the plaint and also the consequent amendment to the preliminary decree, the partition work done by the learned Partition Commissioner cannot stand.