AMIT RAUT Vs. KANHAI ROUT

JUDGEMENT

(1.) THIS Second Appeal by the plaintiff challenges the final decree for partition. The plaintiff in terms of preliminary decree was entitled to one out of six shares. In the final decree certain properties were proposed to be allotted to him by Amin Commissioner. The plaintiff objected to the proposal made by the Amin Commissioner by contending that there has been no proper valuation of the shares and the allotments were inequitable, that the whole of the prime lands available for partition having commercial importance, were allotted to defendant Nos. 4 to 7 alone and that the division proposed was unjust and against the fundamental principle, that the properties should be valued and each sharer should be allotted properties of equal value. The Trial Court did not accept this contention and proceeded on the basis that the lands were non -transferable and therefore, their potential value was irrelevant and allotment was just. Thus, a final decree was passed.

(2.) THE plaintiff challenged the final decree in an appeal. It was argued on behalf of the plaintiff that without valuing the properties and the shares at least notionally, there could be no equitable division in terms of the preliminary decree. It was also pointed that the allotment was unjust as a piece of land without access was allotted to the plaintiff. The lower appellate Court noticed these infirmities but, took the view that the lands were not transferable and their commercial potentiality was irrelevant. It brushed aside the argument based on the need to value the shares and equalise them and proceeded to value the shares by taking the view that the value was statutorily fixed by the Santhal Civil Rules and hence, the question of valuation was not relevant. It proceeded to say that if the properties consisted of such lands, they had to be divided one way or the other and the appellant cannot make a grievance that the allotment was unequal. Thus, the appeal was dismissed.

(3.) LEARNED Counsel for the appellant -plaintiff referred to the decision of the Supreme Court in M.L. Subbaraya Setty V/s. M.L. Nagappa Setty, (2002) 4 SCC 743. He contended that valuing the properties and the different shares was the fundamental step to be taken while effecting a partition by metes and bounds and the same not having been done by the Amin Commissioner, the Courts below substantially erred in law in accepting the division proposed by the Amin Commissioner. Counsel further contended that whatever advantages or disadvantages were there in the properties, they were to be shared equally by the sharers and it was totally unjust and inequitable to say that even if a property having no access was allotted to a co -sharer exclusively, he could not object to the same. Thus, it was submitted that the decree now passed was inequitable, unjust and enough to shock the conscience of the Court to warrant interfere with the final decree.