Calcutta High Court (Appellete Side)
Sri Madan Mohan Jana vs Sri Satyaswar Jana And Others on 13 February, 2019
1 S/L. 24.
February 13, 2019.
MNS.
C. O. No. 2715 of 2008 Sri Madan Mohan Jana Vs. Sri Satyaswar Jana and others Mr. Biswajit Sau, Mr. Tapan Kumar Jana ...for the petitioner.
Ms. Usha Maity ...for the opposite party nos. 2 series and 3.
The contesting parties are represented through their learned counsel in court today.
The present challenge is directed against an order whereby the trial court dismissed the application taken out by the stranger purchaser/petitioner challenging the maintainability of a valuation commissioner's report on the ground that the application under Section 4 of the Partition Act, 1893, in connection with which such report was sought, was itself not maintainable since the partition suit, in which such preemption was prayed for, was not instituted by the stranger-purchaser but the original co-owners.
Learned counsel for the opposite party nos. 2 series and 3 opposes such contention and submits that the preliminary decree has already attained finality and as such, this question could not be agitated at this juncture.
Learned counsel for the petitioner cites a judgment reported at AIR 2000 Supreme Court 2684 (Babulal Vs. Habibnoor Khan (Dead) by L.Rs. and others), wherein it was 2 held that an application under Section 4 of the said Act of 1893 was not maintainable in the event a stranger-purchaser did not pray for partition.
However, the cited judgment arose from a challenge to the parent order under Section 4 of the said Act of 1893, which culminated in the appeal before the Supreme Court.
As opposed to the said cited judgment, in the present case, the preliminary decree and the order (deemed decree) under Section 4 of the said Act of 1893 was never challenged, thereby allowing it to attain finality.
In such view of the matter, the appointment of valuation commissioner and the filing of the commissioner's report were only consequential to the said decree. The decree itself having not been challenged, it was beyond the jurisdiction of the court below to adjudicate afresh upon the question of maintainability of the parent application under Section 4 of the said Act of 1893.
In such view of the matter, the trial court was justified in refusing the maintainability prayer of the petitioner.
Accordingly, C. O. No. 2715 of 2008 is dismissed. There will be no order as to costs.
Urgent certified website copies of this order, if applied for, be made available to the parties upon compliance with the requisite formalities.
(Sabyasachi Bhattacharyya, J.) 3 4 5