- (1.) The Appellant/Defendant No. 1 and Respondent No. 1 Plaintiff and original Respondent No. 2/De-fendant No. 2 are brothers. For the sake of convenience they will be referred to hereafter as they were in the suit. The Plaintiff filed a Partition Suit being C.S. No. 3 of 2005 against his younger brothers, the Defendants on 19th January, 2005. A preliminary decree was passed on 8th March, 2005 wherein the shares of the three brothers were declared. All the properties, whether movable and immovable, of their deceased father were to be shared in equal proportion by the three brothers. A Commissioner was appointed by the Court for partitioning the suit properties and a report from the valuer and surveyor was also called for.
(2.) Considering the Commissioner's report and the report of the valuer and surveyor, a compromise decree was passed on 19th December, 2007. The terms of this compromise decree were to be given effect within two years and the final decree was to be passed after all the properties were partitioned. This decree was passed in G.A. No. 3419 of 2006. The properties to be divided were enlisted in the schedules annexed to the compromise decree. We are concerned with the property in Schedule A. The property in Schedule 'A' was divided into Lots A, B & C which fell to the share of the Plaintiff, Defendant No. 1 and Defendant No. 2, respectively.
(3.) G.A. No. 1361 of 2008 was preferred by Defendant No. 1 for appointment of the Receiver to oversee the construction of a building at the rear end of Lot B. Defendant No. 1 also filed G.A. No. 1493 of 2008 for setting aside the compromise decree on the ground that the terms of settlement could not be given effect as on partitioning the suit property, Lot B would not be habitable. It was contended by Defendant No. 1 that various permissions for constructing the build-ing sought from the Kolkata Municipal Corporation had been rejected and, therefore, the terms of settlement were unworkable.;