- (1.) This application under Article 227 of the Constitution of India is directed against Order No.333 dated 29th January, 2011 passed by learned Civil Judge (Senior Division), 3rd Court, Alipore in Misc. Case No.8 of 1983 arising out of Title Suit No.2 of 1982.
(2.) The background facts of the case may be summarized as follows:- One Bhupati Nath Banerjee filed a partition suit being Title Suit No.2 of 1982 against Bibhuti Bhusan Banerjee. During pendency of said suit Bhupati Nath Banerjee sold out his share in the suit property to one stranger purchaser Deshbandhu Roy (present petitioner). Bibhuti Bhusan Banerjee filed an application under Section 4 of the Partition Act against Bhupati Nath Banerjee as O. P. 1 and Deshbandhu O. P. No.2 being Misc. Case No.8 of 1983. Said Misc. case was disposed of by the learned trial court by an order dated 27.07.1992 allowing the prayer of pre-emption in favour of petitioner Bibhuti with a direction for assessing the value of the suit property through one valuer commissioner. Deshbandhu Roy preferred a revisional application being C. O. No.120 of 1992 against said order dated 27.07.1992. Said C. O. No.120 of 1992 was disposed of on 27.09.1996 with a direction to the trial court to determine the valuation of the property after preliminary decree is passed. In terms of said order dated 27.09.1996 of this Court learned trial court disposed of original partition suit (T. S. No.2 of 1982) by passing preliminary decree declaring Moiete share of petitioner Bibhuti Bhusan Banerjee and of purchaser Deshbandhu by an order dated 20.05.1999. In terms of order dated 27.09.1996 of Justice N. K. Bhattacharjee in a civil revision case fresh valuer commissioner was appointed by learned trial court. Learned trial court accepted the report of valuer commissioner by an order dated 4th of September, 2004. Again purchaser Deshbandhu Roy preferred a revision being C. O. No.3866 of 2004 challenging said order dated 4th of September, 2004 of learned trial court accepting the report of the valuer commissioner. The High Court while disposing said C. O. 3866 of 2004 affirmed the order of acceptance of the report of valuer commissioner but gave liberty to the purchaser Deshbandhu Roy to examine the valuer in court on the point of valuation report. In terms of said order passed in C. O. 3866 of 2004 the purchaser Deshbandhu Roy cross-examined the valuer commissioner. The matter was posted for argument on various dates and the purchaser Deshbandhu Roy participated in those hearings. However, on 6th of March, 2010 no step was taken by the purchaser and accordingly learned trial court disposed of the old pending Misc. case No. 8 of 1983 by an order dated 6th of March, 2010. Thereafter, the purchaser filed an application under Section 151 of the Code of Civil Procedure praying for recalling said ex parte order of pre-emption dated 6th of March, 2010 which was rejected on contest by learned trial court. The purchaser again moved this Court against said order of rejection of his application under Section 151 of the Code of Civil Procedure being C. O. No. 1952 of 2010. After contested hearing Hon'ble Justice Jyotirmay Bhattacharya allowed said application by way of setting aside the ex parte order dated 6th of March, 2010 in Misc. case under Section 4 of the Partition Act with a direction to the learned trial court to reconsider said Misc. case under Section 4 of the Partition Act on its own merit after giving opportunity of hearing to both the parties. In terms of order dated 26.08.2010 passed in C. O.1952 of 2010 learned trial court took up the matter (Misc. Case 8 of 1983) for hearing in presence of both sides and passed the order No.333 dated 29.01.2011 fixing a future date for hearing on the point of assessing value and appointment of valuer of suit property.
(3.) Being aggrieved with said order dated 29.01.2011 the present application has been filed by the stranger purchaser.;