Kale & Others vs Deputy Director Of Consolidation Ors on 21 January, 1976
Mr. Debnath Ghosh learned Counsel appearing for the appellants primarily takes
two points; the first is that in the application filed by respondent No.1, a prayer
has been made for vacating the rooms occupied by Lokenath, Durga, Soumen,
Jamuna and Sourendra Mullick in the dwelling house. Despite the prayer sought
for, there is no prayer in the plaint for recovery of possession or for appointment of
Commissioner of Partition for affecting partition of the suit properties by metes
and bounds. Counsel argues that in the absence of any prayer for recovery of
possession, no decree to such effect could have been granted by the learned Single
Judge. Counsel refers to (2008) 17 SCC 491 for this proposition. The second point
is that the premises No. 237P/1B, Manicktalla Main Road consists of a dwelling
house, a rented house and is a joint property. It would appear from the family
settlement dated 6th May, 1979 (the first family settlement) only 4 cottahs of land
was allotted to Somenath Mullick the respondent No.1. In the second family
settlement of 1980, it has been specifically agreed that the dwelling house at
premises No. 237P/1B, Manicktalla Main Road consisting of a two storied building
shall remain joint for the time being. Hence the exercise undertaken by the
Commissioner of Partition and the valuer is vitiated as the same is contrary to the
terms of the family settlement of 1980. Counsel relies on (1976) 3 SCC 119 (Kale
and Others Vs. Deputy Director of Consolidation and others) for the
proposition that a Court should lean in favour of a family settlement since
members of a family seek to resolve their differences and disputes and bring about
harmony in the family. A family settlement is covered by special equity and should
be enforced.