RADHA DEVI Vs. MITHILESH THAKUR

JUDGEMENT

(1.) THE petitioner has filed this revision against the order dated 22.2.2005 passed by Additional Munsif -IV, Darbhanga in Title Suit No. 89/92 whereby the Court directed the parties to adduce evidence for determination of justified prevailing rate of Schedule -ll property of the plaint.

(2.) THE plaintiffs -opposite party filed the above mentioned Title Suit on 28.9.1992 against the defendant -petitioner and others for partition of their purchased land fully described in Schedule -ll of the plaint. The defendant 1st party -petitioner appeared in the suit and filed written statement on 12.2.1993. In para 31 of the written statement specific averment/undertaking was given to buy the share of the transferee plaintiffs. The suit was taken up for hearing and it was decreed and the claim of the petitioner was rejected. The petitioner filed Title Appeal No. 9/97. The appellate Court allowed the appeal with respect to the claim of the appellant -petitioner and held that the petitioner is entitled to buy the share of the plaintiffs -opposite party on the valuation fixed by the trial court. The plaintiffs -opposite party filed Second Appeal No. 29/99 before the High Court against the judgment and decree of the 1st appellate Court. The said appeal was dismissed on 22.3.2002 holding that there is no infirmity in the judgment and decree muchless involving a substantial question of law warranting interference by the Court. Thereafter the matter, with regard to determination of the valuation of the property mentioned in Schedule -ll of the plaint, was taken up before the Court of Munsif. The learned Munsif by the order impugned directed the parties to adduce evidence for determination of prevailing rate of Schedule -ll property, by the order impugned. The submission of the learned counsel for the petitioner is that the crucial date for fixing the valuation of the share of the transferee is the date when the option of purchase in accordance with Section 4 of the Partition Act, 1983 is exercised by the defendant -co -sharer. On the other hand, learned counsel for the opposite party supported the order impugned and stated that prevailing market rate of the suit property is to be determined for the purpose of Section 4 of the Partition Act.

(3.) ON consideration, this much is obvious that the plaintiffs -opposite party filed the suit seeking partition of the purchased property on 28.9.1992. The petitioner appeared in the suit and filed written statement on 12.2.1993. In para 31 of the written statement the defendant undertook to buy the share of the transferee -plaintiffs. The suit was decreed but the claim of the petitioner was rejected. The petitioner filed appeal and his appeal was allowed and the appellate court held that the petitioner is entitled to buy the share of the plaintiff -opposite party. The Second Appeal against the said judgment and order of the appellate Court was also dismissed. Therefore, the petitioner became entitled to buy the share of the plaintiffs. Thereafter, a question arose for determination of the valuation of the Schedule -ll property. The Court below directed the parties to adduce evidence for determination of prevailing rate of Schedule -ll property.