Calcutta High Court
Anjali Pal vs Parul Pal And Anr. on 23 June, 2005
Equivalent citations: 2005(4)CHN528
Author: Bhaskar Bhattacharya
Bench: Bhaskar Bhattacharya
JUDGMENT
1. This first appeal is at the instance of defendant No. 2 in a suit for partition and is directed against judgment and decree dated 10th July, 1997 passed by the learned Civil Judge, Senior Division, 1st Court, Midnapore in Title Suit No. 163 of 1990 thereby passing a final decree in a suit for partition after accepting the Commissioner's report.
2. There is no dispute that in the past a preliminary decree was passed declaring 1/3rd share of each of the three parties to the litigation. Subsequently, Commissioner was appointed for the purpose of effecting partition in accordance with the said preliminary decree. The Commissioner allotted 8 1/2 decimals of land apart from a residential house in favour of the plaintiff, 21 1/2 decimals of land in favour of defendant Nos. 1 and 27 decimals of land in favour of defendant No. 2. While making such allotments, the Commissioner assessed the valuation of the building at Rs. 60,000/- and that of a gas godown at a price of Rs. 30,000/-. The valuation of the land was assessed at Rs. 2,000/- per cottah.
3. Against such report, the defendant No. 2 preferred objection. The learned Trial Judge after rejecting such objection accepted the report of the Commissioner and accordingly passed final decree in terms of that report.
4. Being dissatisfied the defendant No. 2 has come up with the present appeal.
5. Mr. Tapas Mukherjee, learned Advocate appearing on behalf of the appellant has drawn our attention to the deposition of the Commissioner where he has practically admitted that there was no basis of valuation of the structure at Rs. 60,000/-. It further appears that specific suggestion was given that the valuation of the vacant land in that area was about Rs. 1 lakh per decimal and he could not deny such suggestion effectively. Apart from the aforesaid fact, we find that commission was held only on one day and on that date the defendant No. 2 prayed for adjournment but such adjournment application was dismissed and thereafter the Commissioner proceeded ex parte against defendant No. 2. We further find that although the learned Commissioner has assessed the valuation of the building which is stated to be "Rajbari" (third-storied building), there is no detailed description of even the area of the said house. In such circumstances, we are left with no other alternative but to set aside the report of the Commissioner on the ground that the said report was given practically on the basis of no evidence. We thus set aside the judgment and decree passed by the learned Trial Judge on the basis of such report.
6. The learned Trial Judge is directed to appoint another Commissioner (not the one previously appointed) for the purpose of effecting partition in terms of the preliminary decree. Since the suit is pending from 1990, the learned Trial Judge is directed to give specific direction upon the learned Commissioner to complete investigation and give report within two months from the date of issue of writ. The parties will be at liberty to give evidence before the Commissioner afresh as regards valuation of the land and the structure.
7. The appeal is thus allowed. Judgment and decree passed by the learned Trial Judge is hereby set aside.
8. There will be however no order as to costs.
9. Let xerox certified copy of this order be supplied to the parties, if applied for, within a week.