- (1.) This Court has heard the learned Advocates for the respective parties and has considered the relevant materials on record. Briefly, the facts of the case are as follows: The plaintiffs-respondents filed a suit for partition in respect of certain plot of land with structure thereon and the plot according to the preliminary decree in the partition suit comprises of an area of 65 decimals. The suit was decreed in preliminary form whereby it was decreed that the plaintiffs have eight annas share in the suit property and it is not in dispute that the defendant/respondent also has eight annas share in the suit property. The Partition Commissioner was appointed and the work of partition was done. It may be noted here that the preliminary decree was not challenged by any of the parties. The commissioner of partition gave his final report and on the basis of such final report the suit was finally decreed by the learned Trial Court on 16.02.1999. Thus, the learned Trial Court being the learned Civil Judge (Junior Division), 1st Court at Hooghly decreed the Title Suit No. 175 of 1989 finally on the basis of the said Commissioner's report. Challenging the said decree the defendant filed Title Appeal No. 109 of 2001 which was placed before the learned 2nd Court, Civil Judge (Senior Division) at Chinsurah. The learned 1st Appellate Court affirmed the judgment and decree passed by the learned Trial Court and dismissed the said Title Appeal by the impugned judgment and decree dated 13.03.2003.
(2.) The defendant has thereafter filed the present second appeal, which was admitted for hearing on the following substantial questions of law by order dated 27th June, 2003: "I) Whether the Commissioner of Partition could effect partition of the suit property described in preliminary decree dehors and different from the preliminary decree and deviate from the measurement mentioned therein without any authorisation by Court and that too without having undertaking survey of the plot to establish the area of the plot; and II) Whether the Learned Court could pass a final decree on the basis of an excess area without amendment to the schedule to the plaint or the preliminary decree and without there being any material to establish that the schedule to the preliminary decree was incorrectly written."
(3.) The learned Advocate appearing on behalf of the defendant/appellant has submitted that records would show that the suit was filed by the plaintiffs/respondents for partition in respect of 65 decimals of land with structure and preliminary decree was passed accordingly. The said learned Advocate submitted that the learned partition commissioner acted illegally in submitting his report of partition in respect of 110 decimals of land i.e., 45 decimals in excess of the land which was described in the said preliminary decree. The said learned Advocate submitted that the learned Partition Commissioner could not have done the partition work in respect of 110 decimals, which was beyond the scope of the preliminary decree. The said learned Advocate submitted that without the amendment of the plaint and also the consequent amendment to the preliminary decree, the partition work done by the learned Partition Commissioner cannot stand.;