Calcutta High Court
Ghanshyam Sonkar vs Janki Devi Sonkar & Ors on 6 March, 2017
Author: Biswanath Somadder
Bench: Biswanath Somadder, Sankar Acharyya
ORDER SHEET
GA No.569 of 2017
With
APDT No.10 of 2017
GA No.397 of 2016
CS No.137 of 2012
IN THE HIGH COURT AT CALCUTTA
Civil Appellate Jurisdiction
ORIGINAL SIDE
GHANSHYAM SONKAR
Versus
JANKI DEVI SONKAR & ORS.
BEFORE:
The Hon'ble JUSTICE BISWANATH SOMADDER
The Hon'ble JUSTICE SANKAR ACHARYYA
Date : 6th March, 2017.
Mr.Swarnendu Ghosh, Ms. Sonal Shah, Mr. Navneet Lal,
Advocates for the appellant.
Mr. Ratnanko Banerjee, Sr. Advocate, Mr. Kuldip Mullick,
Advocate for the respondents.
The Court : Let the affidavit of service filed in Court today be kept on record. After considering the submissions made by the learned advocate for the petitioner, it appears that sufficient cause has been shown to explain the delay in filing the instant appeal and as such, the delay is condoned.
By consent of the parties the appeal is treated as on day's list and taken up for consideration along with the application for stay.
The appeal arises out of the following order passed by the First Court on 9th January, 2017 :
"The unsuccessful attempt to challenge a preliminary decree after two years having failed. The unsuccessful co-sharers during consideration of the Commissioner's report by this court urged oral partition of the rents amongst the two distinct groups of legal heirs of Mallu Ram Sonkar which again is inconsistent with the stand taken by the 2 objectors before the Commissioner of Partition. The report of the Commissioner of Partition at page 18 of the Commissioner's report records the objections of the defendant nos.1 and
2. Nowhere in the said report it appears that any such plea was taken before the Commissioner. The objector does not say that the Commissioner has failed to record such submission although it was made during commission. The only objection appears to have been taken in the said affidavit affirmed on 26th September, 2016 is that the method used for arriving at such valuation is not in parity with the fair market value of any other premises in this area. The objector has failed to demonstrate in what respect the valuation made by the Chartered Valuer is erroneous or would be prejudicial to the interest of the objector. The objector has also not produced any other valuation report by any other Chartered Valuer to show that the basis of valuation made by the valuer is erroneous or no objective assessment was made with regard to the property in question.
The objector has relied upon a copy of determination of market value of the said premises downloaded from the website of the Directorate of Registration and Stamp Revenue. In support of this document, it is submitted that the assessment of the valuation of the floors of the building is unrealistic. The document relied upon by the defendant no.1 merely give the total floor area and stated a market value of Rs.2,27,49,255/-. The said report cannot be taken into consideration as conclusive as the said valuation was made for the purpose of stamp duty and registration without taking into consideration the age of the building, its location and encumbrance attached to the said building.
I have gone through the valuation report prepared by the Chartered Valuer. It is a detailed report in which all the factors including the location, encumbrance and age of the property was taken into consideration. The allegations made in the opposition are fanciful and has remained unsubstantiated.
3
Under such circumstances, the objection to the Commissioner's report is rejected. The report of the Commissioner is accepted.
Under such circumstances, there shall be an order in terms of prayer (d) of the application. The Commissioner shall make allocation in terms of the final decree within a period of eight weeks from date.
The department is directed to draw up the decree as expeditiously as possible. The application being GA No.397 of 2016 is, accordingly, disposed of." Even a bare perusal of the grounds of appeal reveals that the appellant, in effect, is trying to reopen the order of the earlier Division Bench dated 19th December, 2016, which is simply impermissible. The order dated 19th December, 2016 is setout hereinbelow :
"The appellant is the stepson of respondent no.1 and the stepbrother of the respondent nos. 2, 3 and 4. One Mallu Ram died living behind the aforesaid persons as his heirs. A suit was filed for partition and the learned Single Judge passed a preliminary decree recording that there was no dispute that each of the parties was entitled to one-fifth share in the joint property at Strand Road. Accordingly, a preliminary decree was passed on 7th July, 2014. Directions were also issued with respect to the rents received by the independent Receiver appointed by the Court.
After two years, the appellant filed an application contending that the preliminary decree should be set aside on the ground that he was entitled to a larger share in the suit property.
The learned Single Judge has refused to set aside the preliminary decree and has observed that the first defendant, that is, the appellant herein accepted the preliminary decree and did not prefer any appeal or contest the same before any forum. It was only two years later that he sought for modification of the preliminary decree. 4
The learned advocate appearing for the appellant has relied on the judgement in the case of Prakash & Ors. Vs. Phulavati & Ors., reported in AIR 2016 SC 769 to submit that since the Mallu Ram, that is, the father of the appellant had expired in 1993, the amendment introduced into the Hindu Succession Act by way of a Section 6 was not applicable to the case.
In our view, there is no need to interfere with the impugned order of the learned Single Judge. The amendment was brought on the statute in 2005. The contention raised on behalf of the appellant that there was an inconsistency in the law or the judgments passed with respect to the effect of the amendment is also baseless as the preliminary decree was passed by consent. Moreover, the Supreme Court in Prakash's case [supra] has observed that there was no conflict with any of the earlier decisions of the Supreme Court and that its view was consistent with the opinion of the Supreme Court in other judgments.
We find no reason whatsoever to interfere with the order passed by the learned Single Judge. The appeal is dismissed. The connected application is also dismissed.
However, we modify the costs to 1000 GMs."
It was the specific contention of the appellant before the earlier Division Bench that the preliminary decree should be set aside on the ground that he was entitled to a larger share in the suit property. This was negated by the earlier Division Bench in its order dated 19th December, 2016, as quoted hereinbefore. The judgment which was sought to be relied upon by the appellant rendered by the Supreme Court in the case of Prakash & Ors. Vs. Phulavati & Ors. reported in AIR 2016 SC 769 was held to be not applicable in the facts of the instant case. As such, to now reapproach the Division Bench on the basis of the consequential order passed by the learned Single Judge on 9th January , 2017 tantamounts to abuse of process of Court.
5
We, therefore, dismiss the appeal along with the application for stay with costs assessed at 100 GMs to be deposited with the State Legal Services Authority, West Bengal, within a fortnight from date, to be kept earmarked for utilisation by the Mediation and Conciliation Committee of the High Court.
(BISWANATH SOMADDER, J.) (SANKAR ACHARYYA, J.) pa