Calcutta High Court
Nilima Mishra & Ors vs Krishna Kumar Mishra on 22 April, 2015
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
GA No.3872 of 2014
With
CS No.282 of 2013
NILIMA MISHRA & ORS.
Versus
KRISHNA KUMAR MISHRA
GA No.4018 of 2014
With
CS No.282 of 2013
NILIMA MISHRA & ORS.
Versus
KRISHNA KUMAR MISHRA
GA No.1230 of 2015
With
CS No.282 of 2013
NILIMA MISHRA & ORS.
Versus
KRISHNA KUMAR MISHRA
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 22nd April, 2015.
Appearance:
Mr. Rupok Ghosh, Adv.
Mr. S. Das, Adv.
. . .for the plaintiff.
Mr. P.C. Paul Chowdhury, Adv.
Mr. D.N. Mukherjee, Adv.
The Court: The report filed by the joint Commissioners of Partition shows that the property is impartible. The valuer appointed by this Court has also given his opinion that the said property is impartible. In such circumstances, the option left in this matter is either to invite offers for sale of the suit premises or to give an opportunity to 2 the co-sharers to buy out shares of the other co-sharer by payment of owelty money. It is an admitted position that the plaintiffs are not in actual physical possession of the property in question whereas the defendant is in possession of the said property.
In such circumstances, the endeavour of the Court should be not to disturb the possession of the co-sharers who are in actual possession of the property and they should be given an option to buy out the share of the other co-sharers by making payment of owelty money. On the basis of the order passed by this Court Mr. Utpal Ganguly, an empanelled valuer and surveyor of this Court has filed a report in which he has suggested that the valuation of the property would be more or less Rs.28-30 lakhs after considering the due depreciation value and maintenance cost of the building. The plaintiffs were unhappy with the said report and has obtained an independent report from one Mr. P.K. Sanyal a Chartered Engineer in which the said valuer has suggested that the fair market value of the immovable property as on date of valuation at Rs.60.25 lakhs.
I have gone through both the reports. I think that the report filed by Mr. P.K. Singal is little exaggerated compared to the report filed by Mr. Ganguly as the said valuer has failed to take into consideration the condition of the building and the impartible nature of the said building.
In my view while deciding the owelty money the Court should not always be guided by the market value of the property. There has to be a fair approach keeping in mind that the equities of both the sides are taken care of and none of the parties at the end of the day are deprived of their legitimate share in the property. Since the plaintiffs are not in occupation of the property and the defendants are in occupation and have paid the municipal charges and maintained the property, in my view, a sum of Rs.45 lakhs would be a fair amount for the purpose of the valuation of the said property. The 3 defendant upon payment of a sum of Rs.22.50 lakhs as and by way of an owelty money would be entitled to the possession of the entire property. The defendant has prayed for six weeks time to deposit the amount. In the event the defendant pays the said sum of Rs.22.50 lakhs within a period of six weeks from date the joint Commissioners of Partition shall execute necessary deed of conveyance in favour of the defendant. In default it would be open for the plaintiff to apply afresh for sale of the property. Upon execution of the said deed the joint Commissioners shall stand discharged. The joint Commissioners shall be entitled to a further remuneration of 1000 GMs. each to be shared by the parties equally.
GA No.3872 of 2014, GA No.4018 of 2014 and GA No.1230 of 2015 are disposed of.
Urgent certified website copies of this order, if applied for, be urgently supplied to the parties subject to compliance with all requisite formalities.
(SOUMEN SEN, J.) sp/