Calcutta High Court
Smt. Sushila Agarwal & Ors. @ Smt. ... vs Jagdish Prasad Agarwal & Ors on 15 January, 2018
Author: Soumen Sen
Bench: Soumen Sen
ORDER SHEET
GA No.2103 of 2017
With
CS No.153 of 2016
IN THE HIGH COURT AT CALCUTTA
Ordinary Original Civil Jurisdiction
ORIGINAL SIDE
SMT. SUSHILA AGARWAL & ORS. @ SMT. SUSHILA BILOTIA
Versus
JAGDISH PRASAD AGARWAL & ORS.
BEFORE:
The Hon'ble JUSTICE SOUMEN SEN
Date : 15th January, 2018.
Appearance:
Mr. Sunil Singhania, Adv.
Mr. Lal Mohan Hajra, Adv.
Mr. Somesh Panja, Adv.
Mrs. A. Hajra, Adv.
Mrs. M. Hajra, Adv.
The Court : The plaintiff has filed a suit for partition. The plaintiff claimed 1/3rd share in the suit property. The plaintiff was declared to be the owner of the undivided 1/3rd share in Plot-C at 82/2, Tagore Castle Street, Kolkata - 700 006 by a decree dated 31st January, 2014 passed by the 8th Judge Bench, City Civil Court, Calcutta, in a suit filed by the plaintiff for declaration and injunction.
The plaintiff thereafter filed a suit for partition. The declaration made in favour of the plaintiff in the City Civil Court suit has been the basis of the present suit. The parties do not dispute that each of the parties is having 1/3rd share in the suit property and on the basis thereof, each of the parties is entitled to a preliminary decree for 1/3rd share each of the undivided suit property. However, it transpires that no formal preliminary decree declaring the share of the parties to the suit property has been made although a Commissioner of Partition was appointed to demarcate the properties and make over possession thereof to the parties on the basis of 1/3rd share each in the 2 undivided suit property. The Commissioner of Partition has proceeded accordingly and has filed a report upon consideration of the Surveyor's report. The Commissioner in his report has stated that the Commissioner has made over possession of the suit property amongst the parties in terms of the order passed by this Court earlier. For the sake of formality it is recorded that a preliminary decree has been passed declaring 1/3rd share of each of the parties in the suit property. The Commissioner of Partition has filed a report demarcating the portion to which each of the parties is entitled to on the basis of this declaration.
A portion which is being allotted to the plaintiff in terms of the report filed by the Commissioner appears to be in a dilapidated condition. The plaintiff is permitted to repair the said portion upon intimation to the Kolkata Municipal Corporation. However, it is made clear that no construction under the garb of repair shall take place until the final decree is passed and also subject to any sanction by the Corporation, if required under the statute.
The defendants have not paid their share of remuneration to the Commissioner. The learned counsel representing the defendant no.1, on instruction, submits that the remuneration of the Commissioner shall be paid by 2nd February, 2018.
The application, being GA No.2103 of 2017 is disposed of by giving liberty to the parties to take appropriate steps in accordance with the report filed by the Advocate Commissioner.
The Department shall draw up the preliminary decree as expeditiously as possible.
The report of the Commissioner is taken on record.
(SOUMEN SEN, J.) B.Pal