- (1.) Challenge in this application is against the Order dated 31st July, 2014 passed by the learned Civil Judge (Junior Division), Sealdah in Miscellaneous Case No. 198 of 1978 arising out of Title Suit No. 612 of 1963 (Mojam Ali Mondal & Ors. Vs. Yunus Ali Mondal) inter alia, on the ground that learned Court below has failed to advert to and consider that for the purpose of making valuation of the pre-empted land, it is the duty of the Court to take into consideration the material fact and that the said pre-empted land had been sold out by the vendors in the year 1963, how much it could have fetched by way of sale price. Admittedly, the petitioners have been in uninterrupted and peaceful possession of the said pre-empted property since long before. The learned Trial Court had further considered for making valuation, certified copy of the Deed of Conveyance which was duly produced before it but, has failed to consider them and thereby erred in law by passing the impugned order appointing Government Valuer for the purpose of valuation of the property on the basis of present market value.
(2.) Chronology and event leading to the instant case is that one Kaloo Mondal, the predecessors-in-interest of the opposite parties during life time instituted a suit being Title Suit No. 612 of 1963 in the 3rd Court of Munsif at Alipore against predecessors-in-interest of the petitioners praying for a decree of partition of the suit property measuring about 94 sattaks of land consisting of dwelling house, garden along with pond on the ground that he had purchased the eight annas share of the suit property from other co-sharers and as the petitioners' predecessor-ininterest and title upon entering appearance filed an application under Section 4 of Partition Act praying for an order of pre-emption of the remaining half share of the suit property alleged to have been purchased by the said Kaloo Mondal on April 6, 1978 which was registered as Misc. Case No. 198/78. One Narayan Dastidar was appointed as a Partition Commissioner who submitted his report on July 8, 1981 wherefrom it is apparent that the defendant/petitioner has been in exclusive possession of the suit property and Mr. K. C. Chatterjee was appointed as a Valuer Commissioner by Order No. 68 dated February 5, 1979 who filed his report which was challenged by the defendant/petitioner and due to death of said Valuer Commissioner the report could not be accepted. The parties were directed subsequently to adduce evidence in support of their claims regarding valuation over half of the suit property and on contested hearing by order dated June 13, 1995 the application under Section 4 of the Partition Act was allowed with a direction to pay a sum of Rs. 5,000/- to the opposite parties being the valuation of the property in dispute and in compliance thereof, the petitioners deposited the said amount by Challan No. 12519 date 22.6.1995.
(3.) On being aggrieved by the said order, opposite parties preferred an appeal being Misc. Appeal No. 159/95 which was allowed on contest by the learned Additional District Judge, 2nd Court, Barasat vide order dated November 8, 2013 by which the order dated June 13, 1995 passed in Misc. Case No. 198/78 was set aside and the matter was sent back on remand to the learned Trial Court with direction to hear the matter afresh on the point of making valuation in accordance with law with the observation that though no particular procedure has been prescribed under Section 4 of Partition Act for making of valuation, yet it is expected that the Court should adopt a methodology which is reasonable and sustainable in law and further observed that the Court could have directed the parties to produce concrete materials with regard to market value of the land and properties in the adjoining areas, adjacent to the suit property and to ask for a report from the Government Department i.e. the Office of the District Registrar competent to determine the market valuation of the property in a particular locality.;