SACHINDRA NATH DAS Vs. NILIMA DAS & ORS

JUDGEMENT

(1.) The defendant in a suit for partition and separation of shares has filed the instant appeal challenging the judgement and decree dated 2nd June 2000 where-by the suit for partition was decreed in preliminary form by a judgement and decree dated May 16, 1991 declaring that the plaintiffs and the defendant have 1/4th share each in the suit property. After passing of the preliminary decree, the Partition Commissioner was appointed, who after completing the commission work submitted his report. The Partition Commissioner's report was accepted by the learned Trial Judge and the final decree dated 2nd June 2000 was passed. The defendant has challenged the said final decree in the instant appeal. The principal ground of challenge in the instant appeal is that the Partition Commissioner did not provide for any provision for construction of a staircase and a septic chamber in the portion allotted to the appellant though the appellant was permitted to use the staircase that existed in the undivided portion for a limited period.

(2.) The purpose of filing the instant suit is partition of the suit property by metes and bounds and for severance of the joint undivided interest in the suit property. It appears from the Commissioner's Report that the suit property is a two storied one and there is a chille kotha and a water tank above the second floor. There is only one staircase in the said property. The Partition Commissioner has allotted specific portions of the property to the parties but has allotted the only staircase of the said property in favour of the plaintiff. The defendant was directed to make their own staircase within one year from the passing of the final decree. The Partition Commissioner has allotted rooms, passage and veranda in favour of the defendants both in the ground floor as well as in the first floor. The allotment made in favour of the defendant/appellant in the first floor will be inaccessible without an independent staircase within the defendant's allotment. The grievance of the defendant/appellant is that the plaintiff are raising obstruction when the defendant attempted to construct the staircase. After going through the Partition Commissioner's Report and upon hearing the appellant appearing in person as well as the Learned Advocates, we feel that a provision of a staircase and septic chamber are necessary for the purpose of beneficial enjoyment of the portion allotted in favour of the defendant/appellant herein.

(3.) In course of hearing of the instant appeal Mr. Pranab Mitra Learned Advocate appearing on behalf of the respondent submitted before this Hon'ble Court that his client has no objection if the appellant constructs a staircase and septic chamber in his allotted portion.