KALYAN KUMAR BASAK Vs. SALIL KUMAR BASAK

JUDGEMENT

(1.) This appeal is directed against order dt. 3rd Feb. 1983 passed by the learned trial Judge in Suit No. 1892 of 1947.

(2.) Sm. Jharna Bose on the strength of her purchase of the undivided 1/7th share in the disputed properties from Madan Mohan Basak, one of the sons of Nandalal Basak, brought a partition suit being Suit No. 1892 of 1947 in the Ordinary Original Jurisdiction of this Court. In 1964, a preliminary decree was passed declaring the shares of the parties and a learned Advocate was appointed as Commissioner of Partition for dividing the disputed properties by metes and bounds in seven equal parts and to allot 1/7th share to each group of parties, alternatively to sell the properties by public auction if it was found that the disputed properties were incapable of partition. The learned trial Judge, however, gave liberty to the parties to bid at such auction and liberty was also given to the parties to purchase the share of Sm. Jharna Bose being a stranger purchaser. The Surveyor appointed for effecting partition by metes and bounds gave a report that the properties were incapable of partition by metes and bounds in several equal shares. There were agreements amongst the Basaks to purchase the share of Sm. Jharna Bose who was a stranger purchaser of the property in question and thereafter several co-sharers jointly purchased the share of Sm. Jharna Bose. After such purchase of the share of Sm. Jharna Bose, her name as plaintiff was struck out and the names of the defendants Salil Kumar Basak and Sanat Kumar Basak who were original defendants in the suit, were transposed to the category of the plaintiff and a direction was given by this court to the Commissioner of Partition to sell the properties by public auction. In view of the death of Sri Sinha, the Commissioner of Partition, Sri R.P. Banerjee, Advocate, was appointed as Commissioner of Partition. A registered valuer and Chartered Engineer valued the disputed premises No. 10 Beadon Row at Rs. 2,54,460/- and premises No. 44, Beadon Row at Rs. 71,764/-. In March, 1978, Sri Bimal Kumar Basak, one of the co-sharers, by registered agreement leased out the undivided share in the properties with the power to sublet in favour of one Sri Chandra Sekhar Basak is a stranger purchaser to the family and he was an Advocate of Sri Bimal Basak, the said Bimal Kumar Basak also agreed with another stranger purchaser, Ganesh Chandra Sett to sell his 10/56th share in the properties and a registered agreement to that effect was executed by Bimal Chandra Basak on 10th March, 1978. The plaintiffs thereafter made an application for an order of injunction restraining some of the parties from in any way interfering with the rights of the plaintiffs in the suit properties and for making additional or alterations thereto. On 2nd May, 1978, the learned trial Judge passed an order directing the Commissioner of Partition to consider the case of joint allotment of the two properties if possible and pursuant to such direction, a surveyor appointed by the Partition Commissioner submitted a Report on 22nd Jan. 1979 and it was indicated in the said report of the Surveyor that the two properties could be suitably divided into two. In the meantime, the defendant No. 6, Kartick Chandra Basak having undivided 1/14th share in the suit properties transferred such share by registered sale deed in favour of some of the co-sharers. On 11th Dec. 1979, Motilal Basak and others made an application that the preliminary decree dt. 5th June, 1964 and the order dated 1st Sept. 1976 directing the Commissioner of Partition to sell the said property by public auction should be varied and revoked and the Commissioner of Partition should be directed to make joint allotment as directed by the preliminary decree, failing which the partition of the property should be effected by equitable method and leave should be given to the said petitioners to buy the shares of the parties who were asking for sale by public auction under Section 3 of the Partition Act.

(3.) On 12th Dec. 1980, the learned trial Judge passed the order directing the Commissioner of Partition to sell the said property by public auction after due advertisement and obtaining fresh valuation if necessary and liberty was given to all the parties to bid in such public auction.