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Calcutta High Court (Appellete Side)

Dipesh Chandra Dey vs Sukhla Roy @ Das & Ors on 22 February, 2012

Author: Soumen Sen

Bench: Soumen Sen

                                                        1

22.02.2012
08

b.r.

C.O. 3543 of 2011 Dipesh Chandra Dey

-vs-

Sukhla Roy @ Das & Ors.

Mr. Tapabrota Chakraborty, ...... for the petitioner.

Mr. Sivaprosad Ghosh, ...... for the O.P.s The defendant in the partition suit is the present petitioner. The petitioner is aggrieved by the order dated 21st of June, 2011 by which the written objection filed by the defendants against the report of the learned Advocate Commissioner submitted on 25th August, 2009 was rejected on the ground that the objection raised are guided by emotions and there is no merit in the said application.

Mr. Tapabrota Chakraborty, learned advocate appearing on behalf of the petitioner submits that on an earlier occasion, the learned Civil Judge, Senior Division, 1st Court, Krishnagar, in considering the application filed by the plaintiff for final decree, passed the following directions:

" Let Sri Sunit Kumar Biswas, learned Advocate, be appointed as a learned Advocate Commissioner for partition in this regard. He is directed to visit the locale, prepare sketch map according to scale, field note, etc. towards effecting partition of the suit property by metes and bounds in terms of the preliminary decree keeping in mind the fact of convenience or inconvenience of possessing the respective allotted portions of the parties in the suit property if allowed to them considering the area of the portion to be allotted in their favour as well as to keep in mind that such partition should not be done by way of disturbing the respective possession of the parties as far as practicable."
2

Following such direction, the learned Advocate Commissioner prepared a report and filed the same before the court on 27th August, 2009. The principal complaint against acceptance of the said report is that the Commissioner while effecting partition of the suit property did not take into consideration convenience or inconvenience of possession the respective allotted portion of the suit property and also did not keep in mind that such partition should not be done by way of disturbing the respective possession of the parties as far as practicable. In the partition suit everyone is a co-owner and having right in every inch of the property. The shares have been defined in terms of the preliminary decree and thereafter the parties have accepted the final decree. In order to implement the said decree, the aforesaid direction was given to the Advocate Commissioner. Normally the property has to be divided by meats and bounds depending upon the shares of the parties and defined in the preliminary decree. In the event, it is found that the estate is impartible then procedure of owelty is adopted so that the unwilling co-sharers may get their shares satisfied by receiving money in lieu of their shares. The concept of owelty is introduced to mitigate the loss of the co- sharers who may not get his shares by reason of the peculiar features of the property.

The Commissioner in the report has described the property and also recorded the fact that the entire plot is under possession of the defendant. 3

Mr. Chakraborty submits that at this stage the Commissioner should have considered the convenience and inconvenience of possessing the respective allotted portion. Mr. Chakraborty submits that the Commissioner although had taken note of the said fact but did not consider the fact of convenience or inconvenience of possessing the respective allotted portions of the parties in the suit property by reason partition and allotment of the portion representing the shares of the parties. Although the Commissioner was specifically asked to consider this aspect of the matter but Mr. Chakraborty complaints that the Commissioner had completely ignored this aspect and the court below was unjustified in dismissing such objection raised by the petitioner. In fact it is contended that the Commissioner failed to act in terms of the order dated 21st June, 2011. I find there is some substance in the said argument. It appears that although the Commissioner had made some allotments but the convenience and inconvenience had not been considered. The court passing the said order on 21st June, 2011 possibly had in its mind to explore the possibility of adjusting the equities amongst the parties by owelty. The matter is sent back to the learned Single Judge for fresh consideration. The learned Judge should take into consideration its order dated 21st June, 2011 and the report filed by the Commissioner. It is needless to mention that if the properties is capable of partition and all the co-owners can enjoy the said property in respect of their shares as exclusive owners thereof, the co-owners could not be denied of their right to enjoy respective shares. The absence of one of the co-owners from the property cannot disentitle him to claim partition and determine his rights as also 4 enjoyment of his shares in the property on the partition being made. The absence of one of the party may be a consideration in considering a claim of convenience and inconvenience but all depends upon the peculiar features and facts of the matter. A co-sharer cannot be forced to give up his share by accepting owlty. It is also equally true that one cannot claim ownership of the entire property only because he is residing in the said property. Such emotions really cannot have any role to play in deciding the matter, and had it been confined to that alone, I would not interfered with the said order. These are the considerations which should be take into consideration by the learned Judge by using his experience in the matter and considering the materials on record.

With these observations, the matter back to the learned Civil Judge, Senior Division, 1st Court, Krishnagar to consider the report afresh and taking into consideration, the objection filed by Chakraborty's client within a period of four weeks from the date of communication of this order.

I have not gone into the merits of the report filed by the Commissioner and it would be open for the Civil Judge, Senior Division to decide the matter afresh being uninfluenced by any observation made in this order.

Urgent photostat certified copy of this order, if applied for, be supplied to the learned advocate for the parties in compliance of necessary formalities.

(Soumen Sen, J.) 5