Maity & Ors Vs. Shew Shankar Shaw & Anr  Insc 665 (18 October 2006)
& Lokeshwar Singh Panta
O R D
E R Heard learned counsel for the parties.
have perused the order of the trial court as well as of the High Court.. A suit
for partition was filed by Gour Hari Maity & Ors. with the following
for preliminary decree as per share of the plaintiffs mentioned above.
appointment of survey commissioner.
final decree after holding commission as per preliminary decree.
costs of the suit.
any other relief/reliefs which the plaintiffs may be entitled under the law and
petitioner as in duty bound shall ever pray." One Chhangur Shaw died on
20.12.1962 leaving behind his wife Munga Debi and his daughter Sumitra. Sumitra
had two sons; Gayadin and Munnalal. Munga Debi who had a half share transferred
her half share =, = to Gayadin and Munnalal. The property was being looked
after by Shew Shankar Shaw at Calcutta whereas Munga Debi and Sumitra were
residing at Benaras (U.P.) Thereafter, it appears that a suit was filed by Munnalal
and others for injunction and possession against Shew Shankar Shaw which was
contested by Shew Shankar Shaw but during the pendency of the suit, Munnalal
sold his share of the property to Shew Shankar Shaw and rest of the property
was sold to Gour Hari Maity and others. Gour Hari Maity and others filed a suit
for possession and partition impleading Shew Shankar Shaw as a defendant. Shew Shankar
Shaw contested the suit and took the plea of adverse possession. Gour Hari Maity
and others did not prosecute their case and in that suit, an application was
filed by Shew Shankar Shaw claiming right of pre- emption. In the application
for pre-emption moved by Shew Shankar Shaw, he submitted that Gour Hari Maity
is not prosecuting the suit properly and, therefore, he may be transposed as a
plaintiff and his right for pre-emption may be decided in the matter.
Unfortunately, the trial court accepted the prayer of Shew Shankar Shaw and
transposed him as a plaintiff in the suit filed by Gour Hari Maity and
proceeded to decide the partition suit and application for pre- emption. The
trial court disposed of the suit declining the prayer of the transposed
plaintiff Shew Shankar Shaw for right of pre-emption.
that suit it was held that plaintiffs (Gour Hari Maity and others) were
entitled to get partition by mets and bounds and a preliminary decree was
passed. Shew Shankar Shaw was given 1/4th share in respect of the suit property
and separate possession by metes and bounds and it was ordered that Gour Hari Maity
& others were entitled to 3/4th share jointly and the parties were given
two months' time from the date of the order to effect partition by metes and
bounds amicably, failing which any of the parties will be at liberty to apply
to court for partition by metes and bounds by way of appointment of a pleader
Commissioner and the application for pre- emption was dismissed on contest.
against this order, Shew Shankar Shaw (the transposed plaintiff) approached the
High Court challenging the order and decree passed by the trial court. The High
Court confirmed the 3/4th share of Gour Hari Maity and others and granted right
of pre- emption in favour of Shew Shankar Shaw and directed the matter be
remanded back to the court below for the purpose of valuation of 3/4th share
held by the respondents (the appellants before us) and to direct and effect sale
thereof to the appellant (the respondent before us) provided he pays the value
as fixed by the court and in the manner to be directed by the court. Aggrieved
against his order of the High Court the present appeal has been preferred by
we do not appreciate the approach of the trial court in transposing the
defendant as plaintiff in a suit for partition filed by Gour Hari Maity &
others ( the appellants herein) and deciding the rights of the parties but the
trial court did it for the benefit of the plaintiff and others and as the suit
has already been decreed in favour of Gour Hari Maity & others ( the
appellants before us) and their 3/4th share has already been determined and
direction was given to settle amicably and if not to apply before court for
appointment of pleader Commissioner who will make proper division by metes and
bounds. The High Court has, of course, reversed the finding of the trial court
to the extent of pre-emption and directed that the respondents herein have a
right of pre-emption and directed the trial court to determine the valuation in
case the respondents herein are interested in buying on the amount determined
by the court and in the manner to be directed by the court. So far as this part
of the impugned order is concerned, we need not interfere because it will be
open for the court to determine the valuation of 3/4th share of the property in
question i.e. 14/1A and in case the respondents are willing to pay that amount
determined by the court then the decree may be passed in favour of the
respondents. It will be open for the court to determine the fair market value
of the property in question. With these observations, the appeal is disposed
of. There will be no order as to costs.