SOUMEN SEN,J. - (1.) The report filed by the Commissioner of Partition is taken on record.
(2.) Although a preliminary decree was passed on 16th February, 1999 but the said decree could not be given effect to as the plaintiff has objected to allotment being made in favour of defendant nos. 1, 2 and 3, on the ground that the entirety of the property has to be valued and thereafter â ..•th share of each of the parties has to be determined.
(3.) On 16th February, 1999 the Commissioner of Partition was appointed to walk over the property and take necessary steps to divide and effecting partition of the said property "as per the agreement in terms of the undivided â ..•th share". Thereafter, the Commissioner of Partition has filed a report which did not find favour with Justice Kalyan Jyoti Sengupta as the Lordship then was. His Lordship observed that the preliminary decree has declared the shares of the parties and at the same time the learned Commissioner of Partition was asked to take necessary steps for partition by metes and bounds and by dividing and effecting partition of the said property as per the agreement in terms of undivided â ..•th share. So it was incumbent upon the learned Commissioner to give effect to the agreement between the parties relied on by the plaintiff himself and annexed to the plaint. Similar objection as of the present nature was raised and overruled. Thereafter, an application was filed for confirmation of the interim report dated 3rd October, 2007 filed by the Commissioner of Partition in which by a Judgment and Order dated 30th January, 2009 similar objection was again considered and rejected. A conclusion of the Learned Single Judge in this regard are : "5. Conclusion 5.1 Having considered the submissions of the parties the preliminary decree has been accepted by all parties which provides for allotment as per the Agreement. 5.2 Each of the parties, undoubtedly, is entitled to â ...•th share in the said premises. Such division is to be made as per the Agreement wherein it has been specifically provided that the first party therein being the petitioner herein "should be allotted with more space in his favour in the Deed of Partition." Therefore it was agreed by the parties that the area given to the petitioner would be more than the respective shares. It was also agreed by the said Agreement that the area allotted was in lieu of the undivided share in the said property. In the plaint too the respondent has sought for division as per the Agreement and sought for specific performance of the undivided share in the suit property. Therefore the petitioner proceeded from the start on the basis of the allotment made under the Agreement and cannot now seek to equalize the shares to the extent of â ...•th each. 5.3 The Commissioner has sought to give symbolical possession which he was entitled to do. There exists no reason to set aside the interim Report and the same is confirmed subject to the last paragraph at page 11 being expunged. The Commissioner has found that division of the balance area is impracticable and that the excess area is impartible. The respondent has also shown its intention to sell the property in case it is practicable to partition, such excess area. Accordingly, steps be taken by the Commissioner of Partition to sell the property and divide the sale proceeds amongst the co-sharers equally. On completion of such exercise the Commissioner of Partition is directed to file his final Report. 5.4 Another factor for passing the order hereinabove is that the terms of the Agreement have been accepted by all parties including the petitioners and the respondent and confirmed by orders passed by this Court. 5.5 For all the said reasons the contentions of the respondent cannot be accepted and is rejected. The decisions reported in 29 CWN 229 and 43 CWN 181 cited, in order dated 7th October, 2005, have been held to be inapplicable to the facts of the case and therefore cannot be relied on. The decision reported in AIR 1957 SC 577 is applicable to the facts of this case. 5.6 In view of the aforesaid this application is disposed of. The Commissioner of Partition and all parties to act on a signed copy of this order. Later It is submitted by Counsel for the petitioner that the sale proceeds before being divided amongst the co-sharers be utilised to meet the statutory dues. Accordingly, the Commissioner of Partition is directed to make payment out of the sale proceeds first towards the statutory dues and thereafter divide the remaining amount amongst the co-sharers equally." (emphasis added);