KASHINATH MONDAL Vs. ACHINTA NAIYA

JUDGEMENT

(1.) The revisional application arises out of an order dated February 21, 2019, passed by the learned Civil Judge (Junior Division), Second Additional Court at Diamond Harbour in Title Suit No. 116 of 2016. By the order impugned, the learned court had rejected the commissioner's report dated September 22, 2008. The report was filed pursuant to a direction upon the learned Trial Judge by the first appellate court for appointment of some other commissioner, in order to effect partition of the suit property by metes and bounds.

(2.) The background of the case is required to be discussed. The predecessors of the opposite parties as plaintiffs, instituted the suit for declaration of title, partition and injunction. The suit was filed before the learned Civil Judge (Junior Division), 3rd Court at Diamond Harbour. Originally the suit was registered as Title Suit No. 110 of 1989. Subsequently, the suit was renumbered as Title Suit No. 116 of 2016. The suit land involved plot No.1567 (bastu) and 1574 (pukur). The predecessors of the petitioners contested the suit by filing a written statement. The suit was decreed in preliminary form and the right of the parties to the extent of 12.5 decimals each, in plot No.1567 was declared. In the preliminary decree, the learned Trial Judge had recorded that the plaintiffs were in possession of a portion of the south block of the property in question. Thereafter, a commissioner was appointed to partition the suit property in terms of the preliminary decree. The commission was held and the report was accepted. The final decree was passed by making the report of the survey passed commissioner, a part of the decree.

(3.) The said final decree was challenged by the petitioners in Title Appeal No. 50 of 2002. The learned Additional District Judge, Fast Track, 2nd Court, Diamond Harbour allowed the appeal by setting aside the final decree dated August 22, 2001, as also the commissioner's report and remanded the suit to the trial court for appointment of another survey commissioner to partition the property and to pass a final decree on the basis thereof. Accordingly, the learned Trial Judge appointed another learned advocate commissioner in compliance with the order passed by the first appellate court. The learned advocate commissioner completed the work of commission and filed a report before the learned court below on September 22, 2008. Along with the said report, a sketch map had been prepared, delineating the portions allotted to the plaintiffs in orange and the defendants' portion in yellow.