BEJOY KRISHNA SADHUKHAN Vs. GANGADHAR SADHUKHAN

JUDGEMENT

(1.) This is an appeal by the plaintiff against the passing of a final decree in a suit for partition filed by the plaintiff in respect of premises No. 5, Harganj Road, now known as Arabinda Road, measuring about 5 (five) kottahs of land on which there is a two-storeyed building. A preliminary decree for partition was passed by the learned Subordinate Judge, Second Court, Howrah, in that suit. By that preliminary decree, the share of the plaintiff-appellant was declared to be 1/4th. In the body of the judgement delivered in the suit, the share of the respondent No. 3 was stated to be 1/4th Though the judgement was silent about the shares of the remaining respondents Nos. 1 and 2 in that property, it is not disputed that each of the respondents 1 and 2 has also 1/4th share in that property.

(2.) At the time of passing of the preliminary decree in that suit, parties were directed to effect amicable partition within two months, failing which the appellant was given liberty to apply for appointment of a commissioner for effecting partition by metes and bounds to the extent of his share in the suit property. It was stated in the preliminary decree that the commissioner, if appointed, should have regard to the existing possession of the parties, as far as practicable. Subsequently, at the instance of the respondent No. 3, there was appointment of a commissioner for effecting partition. The report of the commissioner was subsequently rejected. Another Advocate Commissioner was appointed. Subsequently on 17-5-78, appointment of that second commissioner was cancelled and Sri Monojit Bhattacharjee was appointed as Advocate Commissioner to effect partition of the suit property in accordance with the preliminary decree. Sri Monojit Bhattacharjee submitted a report, on the basis of which a final decree was passed by the learned Subordinate Judge, Second Court, Howrah by his order dt. 28-3-80. It was against this passing of the final decree on the basis of that Order No. 75 dt. 28-3-80 by the Court below that the present appeal is directed.

(3.) After hearing the learned Advocates for the appellant and the respondents Nos. 2 and 3, we have no hesitation to say that the Commissioner's report must be set aside. First the learned Commissioner proceeded on the footing that he was ordered by the Court below to make allotment in respect of 1/4th share of the respondent No. 3 only. Order No. 44 dt. 17-5-78, by which Sri Monojit Bhattacharjee was appointed as Commissioner, was for effecting partition in terms of the preliminary decree. We have checked the writ issued to the learned Commissioner. The writ is also for effecting partition in terms of the preliminary decree. The learned Commissioner was thus not at all justified to proceed on the footing that he was ordered by the Court below to make allotment in respect of the 1/4th share of the defendant-respondent No. 3 only.