MINATI GHOSH Vs. CHAMELI MONDAL

JUDGEMENT

(1.) One Baidyanat Ghosh was the original owner of the suit plot being no. 1593 under Mouza Gobinda Sarak. Baidyanath sold the said property in favour of Banku Bihari Ghosh, Mathura Mohan Ghosh and Kalidas Ghosh vide registered sale deed in the year 1947 and the plaintiff purchased share of deceased Mathura Ghosh and Bipin Bihari Ghosh in 1981 in the said plot no. 1593 measuring about 10 annas 13 gondas 1 kora 1 kranti i.e. 2/3rd share of original owner Baidyanath. Plaintiff was enjoying the property jointly with the other co-share but as she was facing inconveniences in joint possession, she filed partition suit before the Trial court, being T.S 313 of 1985. In the said suit the plaintiffs prayed for a decree of declaration of his 2 /3rd share in the property but in the schedule he described the area of the property as 0.08 decimal. In fact plaintiff being the owner of 2/3rd share is entitled to more or less 8 (7.96) decimal in the suit plot but showing the lesser quantum of land, she sought for declaration in her favour, which may be intentional or unintentional.

(2.) In the said suit defendant no. 1/petitioner herein filed an application for pre-emption under sec. 4 of the Partition Act and the said prayer for pre-emption was allowed by the Trial court and Advocate Commissioner was appointed for assessing the value of the property, with a further direction to the plaintiff to transfer the suit property to the defendant no. 1. However, due to inadvertence of the court below, he directed the plaintiff instead of defendant no. 1 to deposit the required stamp duty on valuation but taking advantage of the wrong recording, the plaintiff deposited the stamp duty and a decree was drawn up on the same day in her favour. Defendant no1 filed an application under sec. 152 of the code of civil procedure for rectification of the said direction and it was allowed by the Trial court and plaintiff was given liberty to withdraw the stamp duty deposited by her and the final decree passed in her favour was recalled and the plaintiff was directed to execute a registered deed of conveyance in favour of defendant no. 1/petitioner herein.

(3.) Plaintiff filed Revisional Application before this court, challenging the order of pre-emption granted in favour of defendant no. 1, but such prayer was rejected and since no appeal was preferred, so it can be said that plaintiffs accepted the order of pre-emption by which the plaintiffs were directed to transfer his share in favour of defendant no. 1 /petitioner.