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Judgment
Debi Prosad Dey, J.—1. This application under Article 227 of the Constitution of India has been filed by the petitioner (defendant No. 1 of TS-28976/2012) challenging the order dated 16th January, 2015 passed by learned Civil Judge, senior division, 9th Court at Alipore whereby and where under learned Judge has directed the present petitioner to hand over duplicate key of the premises in question to the plaintiffs.
The plaintiffs/opposite parties have filed the suit under reference praying for share of property fully described in the schedule of the plaint on the ground that the plaintiffs and the defendants being heir of Smt. Indumoti Kundu, have inherited the suit property in equal share after the demise of Indumoti and as such the plaintiffs/opposite parties have prayed for a decree of partition in respect of their share in the suit property.
The petitioner/defendant No. 1 has filed written statement in the said suit contending inter-alia that Indumoti Kundu since deceased was the exclusive owner of such property and she had bequeathed such property in favour of defendant No. 1/the present petitioner by executing a Will and thereby the petitioner/defendant No. 1 has become exclusive owner of the suit property.
The further case of the petitioner/defendant No. 1 is that the petitioner has also taken necessary steps for obtaining Probate of the said Will and the said application of the petitioner has been registered as the case No. 27290 of 2013 (serial No. 412 of 2013). It is the case of the petitioner that the petitioner has been exclusively possessing the suit property for last 30 years without any interruption and to the knowledge of the opposite parties yet the opposite parties have filed such application for handing over duplicate key of the suit premises with an oblique Motive in order to dispossess the petitioner from the suit property.
Learned Advocate Mr. Piyesh Chaturvedi appearing on behalf of the petitioner contended that learned trial Court was not at all justified in allowing such application of the opposite parties without having any concrete evidence about the possession of the opposite parties in the premises under question and learned trial Court ought not to have passed such order without deciding the actual possession of the parties in respect of the suit premises.
Learned Advocate appearing on behalf of the petitioner further contended that the opposite parties, even after receipt of the notices, did not appear before this Court. Therefore the order passed by learned trial Judge ought to be set aside otherwise the petitioner would be put to serious trouble and the exclusive possession of the petitioner would be distributed by such order of the learned trial Court. Mr. Chaturvedi has however tried to submit about some earlier orders passed by learned trial Judge.
The affidavit of service has been filed by the petitioner and the same has been kept with the record.
It transpires from the affidavit of service that all the opposite parties have received notices about the hearing of this application and even learned Advocate, who appeared on behalf of the opposite parties in the trial Court, has also received due notice about hearing of this application before this Court.
Despite service of notices upon the opposite parties, none of the opposite parties appeared before this Court.
Admittedly the property belonged to Smt. Indumoti Kundu and she died leaving behind the petitioner and the opposite parties as her heirs and legal representatives.
The specific case of the petitioner is that Smt. Indumoti Kundu, since deceased, bequeathed the suit property in favour of the present petitioner on the strength of a Will and the petitioner has also filed an application for obtaining Probate in respect of the Will executed by Smt. Indumoti Kundu. That matter is pending before appropriate Court. In the meantime other heirs of Indumoti have filed this suit for partition stating inter-alia that they have acquired 1/5th share each in the suit property after the demise of Indumoti Kundu.
On the contrary, the specific case of the petitioner is that he has been exclusively possessing the suit property for long 30 years to the knowledge of the opposite parties and the opposite parties have had no possession in the suit property.
In view of such rival claim of both the parties, it would be difficult on the part of the Court to accept the submission of any of the parties on the ground that the Court did not have any material before it to assess/ascertain the actual possession of the parties in the suit premises. Therefore, it would have been justified to decide the said matter by appointing special officer in order to ascertain about the rival claim of the parties or after recording evidences about the possession of the parties in respect of the suit premises. Admittedly, the suit for partition under reference depends, upon the finality of the application for granting Probate in respect of the Will said to have been executed by Indumoti Kundu. Therefore, the application for handing over the duplicate keys of the suit premises to the opposite parties appears to be premature. The said application can only be decided after having necessary material regarding the possession of both the parties in respect of the suit property. A simpliciter direction regarding handing over keys may entirely destroy the case of the petitioner with regard to his exclusive possession over the suit property. In that view of this case learned trial Court was not at all justified in deciding such application for handing over keys of the suit property to the opposite parties without deciding the actual possession of the parties in respect of the suit property. Accordingly, the order passed by learned Civil Judge, Senior Division, 9th Court at Alipore in TS-2897 of 2012 dated 16th January, 2015 is hereby set aside. Learned trial Judge is requested to dispose of such application afresh after giving opportunity of hearing to both the parties in the light of the observation made in the forgoing paragraphs and if possible to dispose of the said application by 31st December, 2016.
Learned trial Court is further requested to expedite the hearing of the suit in order to dispose of such application.
The CO 543 of 2015 is thus allowed.
No order as to cost.
Let a copy of this order be sent to the trial Court for information.
Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible.