- (1.) This application under Article 227 of the Constitution of India is directed against an order being No. 84 dated 15th September, 2009 passed by the learned Civil Judge, Senior Division at Sealdah in Title Suit No. 149 of 1992 by which direction was given by the learned Trial Judge for determination of the valuation of 3/4th share of the stranger purchaser in the suit property by the Collector, 24 Parganas (South) himself with reference to its valuation as on 13th March, 2007 which was the date when, the intention to purchase the share of the stranger purchaser in the suit property was expressed by the plaintiff/petitioner herein. The plaintiff is aggrieved by the said order. Hence the plaintiff has come before this Court with this application under Article 227 of the Constitution of India.
(2.) Heard the learned Advocates for the parties. Considered the materials of the record including the order impugned. Let me now consider as to how far the learned Trial Judge was justified in passing of the impugned order in the facts of the instant case. The basic facts which were relevant for the purpose of fixation of the date with reference to which valuation of the share of the stranger purchaser in the suit property is required to be made, is set out hereunder: i) Originally the stranger purchaser filed a suit for partition against the petitioner herein. The petitioner was contesting the said suit by filing written statement denying the allegations made out by the plaintiff in the plaint. Ultimately the stranger purchaser became disinterested in proceeding with the suit and, in fact, they tried to get the suit disposed of by non-prosecution. ii) Under these circumstances the petitioner herein filed an application under Order 1 Rule 10(2) of the Civil Procedure Code praying for his transposition to the category of the plaintiff. The petitioner's prayer for transposition was allowed on 15th July, 1996 and thereafter on 30th May, 1997, the petitioner filed a plaint of his own as a transposed plaintiff. The petitioner prayed for a declaration of the respective shares of the parties in the suit premises and for a decree of preemption in favour of the petitioner in respect of the shares of the opposite parties. iii) A preliminary decree was passed in the said suit by the learned Trial Judge on 26th February, 1999. By the said decree the plaintiff/petitioner was declared as the owner of the suit property to the extent of 1/4th share therein. The opposite parties' share in the said property was declared as 3/4th share therein. The prayer for preemption which was made by the plaintiff/petitioner was disallowed by the learned Trial Judge. iv) Since the prayer for preemption of the plaintiff/petitioner was disallowed by the learned Trial Judge, the plaintiff/petitioner preferred an appeal being F.M.A. No.221 of 1999 before the Division Bench of the Hon'ble Court and the said appeal was ultimately allowed on 17th February, 2004, granting a decree for preemption of the share of the opposite parties herein in favour of the plaintiff/petitioner. The Appeal Court remitted the matter back to the learned Trial Judge for the purpose of valuation of 3/4th share of the opposite parties and to effect the sale of the same in favour of the petitioner provided the petitioner pays the determined amount as per the direction of the Court. v) The opposite parties were aggrieved by the said order passed by the Appeal Court. Hence they preferred an appeal being Civil Appeal No. 5297 of 2005 before the Hon'ble Supreme Court. The said appeal was ultimately dismissed on 18th October, 2006 with the following observations:- "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 and in case the respondents are willing to pay that amount determined by the Court then the decree should 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 cost." vi) In this context the plaintiff/petitioner filed an application on 13th March, 2007 inviting the learned Trail Judge to determine the valuation of the share of the stranger purchaser in terms of the order of the Appeal Court which was affirmed in appeal by the Hon'ble Supreme Court. vii) The petitioner's prayer for such determination was allowed by the learned Trial Judge. The Collector was directed to calculate the valuation of the suit property. The Collector assessed the valuation of the said property at Rs.2,74,55,708/-. Such valuation was made with reference to the valuation of the suit property as on 3rd February, 2009. viii) The plaintiff/petitioner refused to accept the said valuation primarily on two fold grounds. Firstly, the Collector who was required to assess the valuation of the suit property himself did not do so personally. On the contrary he deputed some other Officer to assess the valuation of the suit property and in fact such the valuation was made by such deputed Officer and the valuation report was simply forwarded by the collector to the learned Trial Judge. Since the Collector himself did not assess such valuation, the report submitted by the Collector cannot be accepted as valuation of the suit property as per Section 4 of the Partition Act. Secondly, though the valuation of the suit property was required to be assessed with reference to its valuation as on date of filing application for preemption by the petitioner, i.e. as on 30th May, 1997, but such valuation was assessed with reference to the valuation of the suit property as on 3rd February, 2009. As such, the said valuation cannot be accepted as a proper valuation of the suit property under Section 4 of the Partition Act. ix) The learned Trial Judge found much substance in such contention of the plaintiff and accordingly modified the earlier order but while passing the impugned order on 15th September, 2009 the learned Trial Judge directed the Collector to value 3/4th share of the opposite parties in the suit property on the basis of its valuation as on 13th March, 2007 which was the date when the plaintiff/petitioner invited the learned Trial Judge to determine the valuation of the share of the stranger purchaser after disposal of the aforesaid special leave petition by the Hon'ble Supreme Court. The learned Trial Judge was of the view that 13th March, 2007 was the relevant date as the petitioner undertook to purchase the stranger purchaser's share in the suit property by filing the application on that date. The learned Trial Judge further directed the Collector to assess the valuation of 3/4th share of the stranger purchaser in the suit property by himself. In this context, this Court is invited by the plaintiff/petitioner to assess the propriety of the order of the learned Trial Judge whereby the Collector was directed to assess the valuation of the suit property with reference to its valuation as on 13th March, 2007.
(3.) According to the plaintiff/petitioner such valuation should be made with reference to its valuation as on the date when the plaintiff/petitioner applied for preemption i.e. as on 13th May, 1997 when the petitioner, after his transposition to the category of the plaintiff, filed his own plaint praying for preemption of the share of the stranger purchaser.;