KRISHNADHONE CHATTERJEE Vs. AJIT KUMAR MITRA

JUDGEMENT

(1.) This appeal by the Plaintiff is directed against the concurrent decision of the Courts below and arises out of a final decree in a suit for partition.

(2.) Facts which are no longer in dispute may briefly be stated : The Plaintiff, who is a stranger purchaser, purchased six annas interest in the suit property by a kobala, dated February 15, 1955 and thereafter sued for partition of his share of the said property. The Defendant No. 2, who is also a stranger purchaser of two annas share in the aforesaid bhiti, tank and bagan properties, was made a party Defendant in the suit. The property originally belonged to the predecessor of the Defendant No. 1, who contested the suit for partition, inter alia, asserting his right to pre -empt the portion purchased by the Plaintiff and the Defendant No. 2 under Sec. 4 of the Partition Act. The suit was decreed in preliminary form on June 1, 1960, by the learned Munsif and the Court gave the Defendant No. 1 liberty to purchase the shares of the Plaintiff and the Defendant No. 2 under Sec. 4 of the Partition Act. On September 26, 1962, the Defendant No. 1 filed two petitions - -one for making the decree final, inter alia invoking his right under Sec. 4 of the Partition Act and expressed his intention to purchase the shares of the Plaintiff and the Defendant No. 2 and another for bringing on record the heirs of the deceased Respondent No. 2 who died in the meantime. The substitution having been effected, the Court directed appointment of a pleader Commissioner on November 19, 1964, for making partition in terms of the preliminary decree passed in the suit and for valuation of the shares that the Defendant No. 1 intended to purchase under Sec. 4 of the Partition Act. The Commissioner submitted his report on November 29, 1966, to which the Plaintiff filed an objection. The objection against the Commissioner's report was heard on February 22, 1967, on which date the Court overruled the objection and accepted the report and map of the pleader Commissioner, made the preliminary decree final with the Commissioner's report and map being made part of it. On March 3, 1967, the Defendant prayed for permission to deposit a sum of Rs. 1,415 -63 and the challan for the amount was passed.

(3.) Against this decision of the learned Munsif accepting the Commissioner's report and making the decree final, the Plaintiff preferred an appeal to the learned District Judge, Hooghly, who dismissed the appeal on the ground that the appeal was incompetent and the valuation of the Commissioner was rightly accepted by the learned Munsif. It is against this decision the Plaintiff preferred the Second Appeal to this Court.