AMENA BIBI Vs. ABDUL HAQUE
HIGH COURT OF CALCUTTA
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(1.)Plaintiffs in T. S. 68/1973 of the 5th Court of the Assistant District Judge, Alipur have called in question the legality, validity and the propriety of the order accepting the Advocate Commissioner's report in an application for pre-emption. The predecessors-in-interest of these petitioners filed a suit for partition and prayed for permanent injunction in T. S. 68/73 against the defendants/opposite parties. After the death of the original plaintiff, these petitioners were substituted as his legal representatives who were allowed to prosecute the suit. Sk. Abdul Haque, the defendant No. 1opposite party contested the said suit for partition by filing his written statement. The defendant No. 1 is said to have acquired an interest in the disputed property which is a family dwelling house under several purchase deeds. He is a stranger to the family. The partition suit was preliminarily decreed on contest against the defendant No. 1 and ex parte against others. In the said suit, it was held that the plaintiffs-petitioners were entitled to 209 / 864th share in the suit property. The final decree application is now pending in the Trial Court. Thus, the petitioners have claimed that the defendant-opposite party had purchased moiety under live different Registered Sale Deeds for a sum of Rs.27,000/-. The defendant No. 1 having purchased the residential house from the different co-shares he being an outsider is not legally competent to possess the joint family dwelling house. Therefore, the revision petitioners filed an application under S. 4 of the Partition Act which was registered as Misc. Case No. 30/ 84 for pre-emption. The opposite party No. 1 filed written objection to the said application. The learned Assistant District Judge, Alipur allowed the Misc. Case No. 30/84 for pre-emption against the defendant No. 1. After the said application having been allowed the learned trial court had appointed an Advocate Commissioner for assessment of the valuation of the interest of defendant No. 1-opposite party in the suit property. The Commissioner submitted his report by assessing the value of the interest of the defendant No. 1 at Rs.15,26,400/- (Rupees fifteen lacks twenty six thousand four hundred only). The trial Court accepted the Commissioner's report after ever-ruling the objection of the petitioners. Thus, the petitioners challenged the acceptance of the commissioner's report in this revision.
(2.)Mr. Dasgupta on behalf of the revisionist has strenuously urged that the order of the learned Asstt. District Judge accepting the Commissioner's report which was based on unscientific and illogical reasons is nothing but illegal, arbitrary and irregular exercise of jurisdiction. He, however, maintained that the Commissioner without collecting any materials at this spot had arbitrarily fixed the valuation at such staggeringly inflated figure of amount of Rs. 15,26,400 / - in which case it is highly impossible and impracticable for the petitioners to comply with. this said order.
(3.)Mr. Dasgupta took an inexorable plea that while assessing the valuation of a property on an application under S. 4 of the Partition Act the valuation under which the property is said to have been sold assumes greater significance. The learned Commissioner has overlooked these aspects and arbitrarily assessed the valuation at an astronomically high figure. The learned Commissioner having not observed the basic norms and his report was more on impertinent grounds is liable to be rejected.
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