Kalipada Ghosh vs Krishnapada Ghosh And Ors

Heard Mr. D.R. Chowdhury, learned counsel appearing for the appellant (the defendant No.1) as well as Mr. A.K. Bhowmik, learned Sr. counsel assisted by Mr. R. Datta, learned counsel appearing for the respondent No.2 (the plaintiff No.2 in the suit). The other respondents have not entered in the appearance despite due notice.

This is an appeal under Section 97 of the CPC against the final decree dated 17.02.2016 delivered in Title Suit(Partition) 28/2007 by the Civil Judge, Senior Division, Court No.2, West Tripura Agartala.

The facts are mostly admitted. The plaintiff-respondents filed the suit being TS(Partition) 28 of 2007 for partition of joint property inherited by the plaintiff-respondent, the defendant No.1-appellant and the defendant-respondent Nos.3 to 7 who are the legal heirs of Ramanimohan Ghosh, the father of the parties. A tract of land measuring 0.34 acres pertaining to plot No.1192 corresponding to present plot No.821 and plot No.1193 corresponding to present plot No.822 measuring 0.09 acres recorded under Khatian No. 1287 of Mouja Uttar Champamura is the landed property left by the father of the parties. When the parties failed to strike out amicable settlement, the plaintiff-respondents filed a suit for partition of the said joint property. The trial Court passed the preliminary decree on 10.05.2010 declaring the share of the parties in the suit property as described in the plaint. Thus, the plaintiff-respondents and the defendant-appellant as well as the defendant-respondents became entitled to get 1/5th share each from the said joint property.

The preliminary decree was passed in terms thereof, giving liberty to the parties to divide their shares amicably. But the parties failed to do so. On reference, the trial Court appointed a survey commissioner to cause partition by metes and bounds, according to the share in terms of the preliminary decree dated 10.05.2010. The survey commissioner submitted his report. In the meanwhile, the defendant No.4 filed one petition to review the preliminary decree dated 10.05.2010, but the said prayer was rejected by the order dated 28.02.2015. In the intermittent time, the defendant-respondent No.5 filed one petition under Article 227 of the Constitution of India, challenging the order dated 28.02.2015, rejecting the petition of review filed by defendant-respondent No.4. The said petition, being CRP 25 of 2015 was disposed of by the judgment and order dated 24.09.2015 with an observation that the petitioner (the defendant No.5) may challenge the preliminary decree filing an appropriate petition under Order IX Rule 13 of the CPC for setting aside the ex-parte decree. It has been claimed by the defendant No.1-appellant that on 17.02.2016, he filed objection against the survey commissioner's report. On scrutiny, this Court has come across the revealing fact that the said objection was not filed within the stipulated date and that was filed subsequent to the passing of the final decree dated 17.02.2016.

Mr. Chowdhury, learned counsel, thereafter submitted that the survey commissioner had conducted the survey in absence of the defendant No.1-appellant and as such, this report was created behind the back of the defendant No.1-appellant. But from the records, we find that it was the survey commissioner who served the notice of survey to the counsel prior hand, but the defendant No.1-appellant was not present. This Court has inferred this fact from scrutinising the records, produced by the survey commissioner in the Court below.

Mr. Chowdhury, learned counsel has further submitted that the plot allocated by the Survey Commissioner has not included various important installations constructed by the defendant No.1-appellant and those installation had fallen in the plot-A given to the plaintiff No.2-respondent. That apart, both plot-A & plot-B of the carved out plots as shown in the hand-sketch map are of the same amount of the land, even though defendant No.1 had got his plot at the rear of the plot No.1 but the Plot No.1 is just along the Government road and for the advantage of the Government road that land becomes more valuable and holds potential for future. Mr. Chowdhury, learned counsel has thus contended that the distribution is inequitable and as such interference is imminent. The division of the land for carving out the plots as shown in the hand-sketch map of the surveyor report is not reasonably made and thus it is inequitable and requires interference.

This Court had taken an initiative to arrive at a settlement between the defendant No.1-appellant and the plaintiff No.2-respondent by adjusting the allocation of the land. For this purpose, the defendant No.1-appellant and the plaintiff No.2-respondent were asked to appear before us in person. Showing a great gesture, both the parties have not only appeared before us, but they have agreed to the proposal made from the Court for adjustment of the land as allocated by the final decree. Both the parties have agreed in presence of their advising counsel to adjust the land by giving a fair share of the land carving out from the plot-A to the defendant No.1-appellant adding that amount of land to the plot-B.

For this purpose, the physical survey report of the suit land may further be referred to. The partition has caused as per the schedule which has been engrafted in the surveyor's report. The said schedule is supported by one hand-sketch map showing the actual amount of land. It is apparent that both the plaintiff No.2-respondents and the defendant No.1-appellant got their land from the plot No.821 and plot No.822 pertaining to khatian No.1287. The plaintiff No.2-respondent has got 3456 Sq. Ft. whereas the defendant No.1-appellant has also got the equal amount of land measuring 3456 Sq. Ft. After mediation, the parties have agreed to adjust the land. The plaintiff No.2-respondent has agreed to divest the piece of land measuring 5 feet X 53 feet at the back of the said plot A. Thus, after adjustment, plot No. A would physically measure as 64.3 inch X 53 feet-0 inch. So, the said land would be extracted out of the survey commissioner's plot No. A. Consequently, the present physical measurement of the plot-A would be 3456-265 = 3191 square feet.

Accordingly, in the partition schedule, against the plaintiff No.2-respondent, Smt. Milan Ghosh, the allocated area would be 3191 square feet forming the plot No.A. The said amount of land measuring 265 square feet would be added with the plot No. B allocated to defendant No.1-appellant, Sri Kalipada Ghosh, by increasing the area of the said plot of Kalipada Ghosh to 3721 square feet from 3456 square feet. The said land [after adjustment] will form the plot No.B as reflected in the partition schedule. The areas as were allocated to the plaintiff No.2-respondent and the defendant No.1-appellant stand modified. In the result, the plot-A would measure 3191 square feet and the plot No.B would measure 3721 square feet. The decree stands modified accordingly. Other plots and the allocated areas shall remain intact. For further clarification, now the physical measurement of the plot-B would be 70-3 inch X 53 feet-00 inch whereas the physical measurement of the plot-A would be 60-3 inch X 53 feet -0 inch. The decree shall accordingly be modified.

In terms of the above, this appeal stands partly allowed by consent of the defendant No.1-appellant and the plaintiff No.2-respondents. Since the other plots as allocated have not been interfered, this Court does not consider the presence of the parties relating to the other plots.

Send down the L.C. records forthwith on preparation of decree.