Calcutta High Court (Appellete Side)
Ac Rajib Lochan Ghosh & Anr vs Dilip Kumar Pal & Ors on 10 January, 2012
Author: Harish Tandon
Bench: Harish Tandon
1 Sl/ 10.01.12 C.O. 1585 of 2010 17 ac Rajib Lochan Ghosh & Anr
-vs-
Dilip Kumar Pal & Ors Mr. Ram Prakash Banerjee ... For Petitioners Mr. D.N. Batabyal Mr. Sujit Chowdhury ... For Opposite Parties No. 2, 3 and 4 Vakalatnama filed today on behalf of opposite parties no. 2, 3 and 4 be kept with the record.
This revisional application is directed against Order No. 127 dated 20th March, 2010 passed by the Civil Judge, (Senior Division), Katwa, District Burdwan, in Misc. Case No. 5 of 1992 by which an objection to the Commissioner's Report was rejected.
The plaintiffs, being the co-sharers, filed an application under Section 4 of the Partition Act claiming preemption, which was registered as Misc. Case No. 5 of 1992. The said application was dismissed by the trial Court but the appellate Court reversed the said finding and ultimately this Court declined to interfere with the said order. Thus, the application for preemption under Section 4 of the Partition Act stood allowed and for the purpose of ascertainment of the market value of the property, Commissioner was appointed. The Commissioner considered the sale deeds produced by the parties before him and submitted his report in the year 2007 assessing the present market value at Rs.60,000/- for undivided 1/3rd share. The petitioners objected the 2 said valuation report on the ground that the Commissioner did not take into consideration the comparable sale deeds of the relevant year and also did not afford opportunity to lead evidence in support of their C.O. 1585 of 2010 contention. Such objection was not found tenable by the trial Court in the impugned order.
Before this Court, a point is taken that the market value of the property should be ascertained as on the date of filing of the application under Section 4 of the Partition Act and not of any other date subsequent thereto. In support of the said contention, reliance is placed upon a judgment of this Court in the case of Shew Shankar Shaw @ Shew Sankar Das -vs- Gaur Hari Maity & Others, reported in 2010 (4) CHN (Cal) 989.
Learned Advocate appearing for the opposite parties vehemently opposes such submission in contending that the order passed on an application under Section 4 of the Partition Act stood affirmed on dismissal of the revisional application before this Court and thereafter, in terms of the order passed by the trial Court, the valuation of the property was ascertained by the Commissioner, is correct.
On noticing the judgment of the Co-ordinate Bench, rendered in the case of Shew Shankar Shaw (supra), objection of the opposite parties is not tenable. Similar and identical point was involved in the said judgment as to what could be the date of ascertainment of the valuation of the property under Section 4 of the Partition Act and it was observed :
3"8. In fact, an identical issue was raised before the Division Bench of this Hon'ble Court in the case of Gopal Chandra Mitra & Ors. Vs. Kalipada Das & Ors. (supra) wherein the Division Bench of this Hon'ble Court held as follows:
"We are accordingly of the view that the relevant date for the purpose of determining the valuation under section 4(1) of the Partition Act would be the date C.O. 1585 of 2010 when the member-shareholder undertakes to buy the share of the transferee, provided such undertaking is given after the share of the transferee has been ascertained by the Court in the preliminary decree. But when an application under section 4 of of the Act containing such an undertaking has in fact been filed, as it can be filed, before the preliminary decree, the valuation shall have tobe made as on the date of the preliminary decree, as only after ascertainment of share by such a preliminary decree, an application under section 4 along with the undertaking becomes legally effective and operative which until that stage remains a mere paper."
9. If the principle which was laid down by the Division Bench of this Hon'ble Court in the said decision is applied in the instant case, then this Court holds that since the plaintiff has applied for such preemption in the instant case prior to the passing of the preliminary decree in the said suit, the relevant date for the purpose of assessment of valuation of the share of the stranger purchaser in the suit property will be the 4 date when the preliminary decree in the said suit was passed declaring the share of the parties in the suit property. Though the petitioner's right to preempt under section 4 of the Partition Act was recognized by the Appeal Court for the first time on 17th February, 2004 and subsequently was affirmed in appeal by the Hon'ble Supreme Court on 18th October 2006 but sale price of the stranger purchaser's share cannot be fixed with reference to the date when the petitioner's right of preemption was recognised inasmuch as section 4 of the Partition Act speaks of sale of the share of the stranger purchaser at its valuation as on the date when the co-sharer undertakes to purchase the share of the stranger purchaser.
10. The decisions which were cited by Mr. C.O. 1585 of 2010 Mahato clearly demonstrate that the date when the plaintiff's right to preempt was recognized by the Appeal Court for the first time cannot be accepted as the date with reference to which valuation of the share of the stranger purchaser in the suit property is to be made, as the date of allowing the application under section 4 of the Partition Act is not the relevant date with reference to which valuation of the share of the stranger-purchaser is required to be made inasmuch as the relevant date is the date when the plaintiff undertakes to purchase the share of the stranger-purchaser in the suit property. Such undertaking was given by the plaintiff in his plaint itself which was filed on 31st March, 1997 but since such undertaking was given by the plaintiff in the plaint before passing of the preliminary decree, the relevant date in the 5 instant case as per the decision of the Division Bench of the Hon'ble Court in the case of Gopal Chandra Mitra & Ors. Vs. Kalipada Das & Ors. (supra) will be the date when the preliminary decree was, in fact, passed declaring the shares of the parties i.e. as on 26th February, 1999.
11. As such, by applying the principle as laid down by the Division Bench of this Hon'ble Court in the case of Gopal Chandra Mitra & Ors. Vs. Kalipada Das & Ors. (supra), this Court holds that the learned Trial Judge was not justified in directing the Collector to assess the valuation of the share of the stranger purchaser with reference to its valuation as on 13th March, 2007 which was not the date when the plaintiff, in fact, undertook to preempt the share of the stranger purchaser. The plaintiff simply filed an application on 13th March, 2007 inviting the Court to assess the valuation of the shares of the stranger purchaser in terms of the direction passed by the Hon'ble Supreme Court so that he can fulfil his C.O. 1585 of 2010 undertaking given by him in the plaint itself. As such 13th March, 2007 cannot be regarded as the relevant date for the purpose of valuation of the share of the stranger purchaser under section 4 of the Partition Act."
Thus, the relevant date for ascertainment of the market value of the property, under Section 4 of the Partition Act, in the event the same is filed before the preliminary decree, is the date when the preliminary decree is passed otherwise it is the date when undertaking is filed by the petitioners claiming such 6 preemption. Since an application is filed which signifies an undertaking to buy the share of the stranger purchaser, in my considered view, the same must be the relevant date for ascertainment of the market value of the property. Since the report of the Commissioner is founded on the valuation made subsequent to the date of filing an application under Section 4 of the Partition Act, which was admittedly filed after the preliminary decree was passed, such valuation could not have been accepted by the trial Court.
In such view of the matter, the order impugned is not sustainable and is, therefore, set aside. The Commissioner is directed to make market valuation of the property in the light of the directions made hereinabove and submit his report before the trial Court within two months from the date of communication of this order.
The revisional application is disposed of. However, there will be no order as to costs.
Urgent photostat certified copy be supplied to the parties, if applied for, on priority basis.
(Harish Tandon, J.)