- (1.) This revisional application is directed against the order no. 87 dated January 3, 2015 passed by the learned Civil Judge (Senior Division), Diamond Harbour in Title Suit No. 132 of 1996, by which the objection to the valuation report was rejected and simultaneously the valuation report was accepted by the Trial Court.
(2.) Admittedly the stranger purchasers filed a suit for partition against the remaining co-sharer, which was decreed in preliminary form. After the preliminary decree is passed, an application under Section 4 of the Partition Act, 1893 was taken out on 5th May, 2001 seeking to preempt the share of the stranger purchasers and undertake to buy the same at the market price. The said application, which was taken out on 5th May, 2001 took nearly seven years to get it disposed of by an order dated 3rd September, 2008. It further appears that several reminders were given by the Court to the Collector, 24- Parganas (South) to submit the report as to the market value of the property, which could only see the light of the day on 17th July, 2013 indicating the market value at Rs. 10,37,569/-. Apart from a Memo No. 163 dated 3.6.2013 the said report is silent as to whether such market value has been ascertained on the date of the said Memo or on the date when the petitioner applied to purchase the share of the stranger purchasers before the Trial Court.
(3.) Though the judgement of a Division Bench of this Court rendered in case of Monomohan Saha vs. Usha Rani Ghosh, 1979 AIR(Cal) 79 was cited before the Trial Court, the Trial Court misconstrued the ratio laid down therein and misinterpreted the provisions contained under Section 4 of the Partition Act, 1893 while rejecting the objection and accepting the valuation report. Before proceeding to deal with the point canvassed before this Court, it would be profitable to quote Section 4 of the said Act, which runs thus: "4. Partition suit by transferee of share in dwelling-house. (1) Where a share of a dwelling-house belonging to an undivided family has been transferred to a person who is not a member of such family and such transferee sues for partition, the Court shall, if any member of the family being a shareholder shall undertake to buy the share of such transferee, make a valuation of such share in such manner as it thinks fit and direct the sale of such share to such shareholder, and may give all necessary and proper directions in that behalf. (2) If in any case described in sub-section (1) two or more members of the family being such shareholders severally undertake to buy such share, the Court shall follow the procedure prescribed by sub-section (2) of the last foregoing section.";