Decided on January 18,1996

MANOJ DAS Appellant


B.Panigrahi, J. - (1.)This revision is directed against Order No. 111 dated 11.6.91 passed by the Learned Assistant District Judge, 2nd Court, Midnapur in J. Misc. Case No. 6/91 rejecting the application filed by revision petitioners under Section 5 of the Indian Limitation Act. Defendants 1(ka), 1(kha) and 1(ga) in T.S. No. 11/88 filed this revision. The mother of the petitioners 4 to 7 Late Saibalini Debi purchased a portion of Plot No. 440 from Khandibala Dasi by a Registered sale deed dated 27.7.61. Since the date of purchase, she had been in possession of the suit land and constructed boundary wall on all sides. After the death of Saibalini Debi the petitioners 4 to 22 inherited the said properties and possessed the same. The defendant Bidangabala Das purchased eastern portion of the suit Plot No. 440 measuring 43 decimals under a registered sale deed dated 11.1.58 and she gifted her purchased property to her husband Kailash Das by a registered gifted deed dated 29.7.66. Kailash sold some portion from that land and, subsequently, died on 3.5.78 leaving three sons, five daughters and his widow Bidenga Bala Das as his heirs. Bidenga Bala Das and five daughters transferred the properly in favour of three sons of Kailash by a registered deed dated 18.11.81. Before the death of Kailash he had transferred 39 decimals out of 43 decimals of the said land. The petitioner No. 2 claimed to have purchased 17 decimals of suit plot No. 440 from Mohammad Idrish and Nismannessya Bibi by a registered deed dated 23rd May, 1960. It is claimed by the petitioners 1 (ka) to 1(ga) and the defendants petitioner No. 2 that they have been in possession to specific and seperate parcel of the land by constructing house, well etc. within the land in Plot No. 440.
(2.)The plaintiff-opposite party filed Title Suit No. 11/88 for partition before the learned Assistant District Judge, 2nd Court, Midnapur. Preliminary decree was passed on 3.12.88. The plaintiff following the said preliminary decree applied for final decree and in the said proceeding Advocate Commissioner Satyendra Nath Jana was appointed for local investigation and partition. It is stated that in the preliminary decree the court directed to partition the property following the rule of equity keeping due regard to the present possession of the parties over the suit plots and their mutual convenience and inconvenience. The commissioner after local investigation and partition at the spot of the suit plots submitted his report. The court had fixed a date inviting objection from the parties. When no objection had been filed by any party against commissioner's report, the court accepted the report and passed final decree in pursuance of the same. After the final decree the plaintiff filed an exception case for taking delivery of possession in accordance with the share delineated by the commissioner. At this stage these petitioners filed an application for review of the final decree along with an application for condonation of delay. The learned court below rejected their prayer for review of the final decree and also dismissed their applications for condonation of delay.
(3.)Mr. S. P. Roy Chowdhury argued in support of petition and strongly urged that the learned Trial Court has in the instant case illegally rejected the prayer of the revision petitioners under Section 5 of the Limitation Act and consequently rejected the review petition filed by the defendants. Petitioners' specific case is that they could not file any objection against the report of the learned commissioner for being misguided. It was further contended that it was not possible to know from the report that a portion of the structure of the defendants-petitioners had been included within the allotted land of the plaintiffs. It was asserted that the petitioners being informed by the clerk only on 4th March, 1991 whereafter they filed this review application. Therefore, there was sufficient reasons for having not filed objection against the commissioner's report earlier. In that event, the learned court below should have accepted their prayer vis-a-vis allowed the review application. It is contended by the petitioners that they came to know that due to non-filling objection against the report of the learned commissioner it had been accepted and the final decree had been drawn up. It is argued that the objection could not be filed even alter exercise of due diligence and it was to within the knowledge of petitioners.

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