Bibek Chaudhuri, J. - (1.) A suit for partition and administration of estate being CS No.296 of 1997 filed by the predecessor-in-interest of the present appellants was decreed in preliminary form by this Court by a judgment dated 16th February, 1999. The relevant portion of the preliminary decree passed in the said suit is reproduced below:- "I have satisfied with the submissions made by the learned Counsel on behalf of the plaintiff in respect of shares and in respect of the immovable property being the subject matter of partition. Since there is no objection with regard to share and property, I apply the principle of Order 8, Rule 5 of the Code of Civil Procedure and pass a preliminary decree in terms of prayer(s) of the plaint. Ms. Swapna Mukherjee, an Advocate of this Court, member of the Bar Library Club, is appointed Commissioner of Partition, Commissioner of Partition be appointed in the property who will work over the property and take necessary steps for the purpose of partition by metes and bounds by way of dividing and effecting partition of the said property as per the agreement in terms of the undivided 1/5th share. The Commissioner of Partition will complete her work within a period of eight weeks from the date of communication of the order and furnish a return before this Court for the purpose of passing a final decree."
(2.) It is pertinent to mention here that prior to the institution of the suit, the co-sharers being the original plaintiff and the defendants of the said suit had entered into an agreement for amicable partition of the suit premises amongst themselves. Clause 3 of the agreement reads thus:- "The parties hereto have mutually agreed that the First Party herein, for his contribution and services rendered for the safety and management of the joint properties should be allotted with more spaces in his favour in the Deed of Partition." It is further stipulated- "The First Party shall accept in severalty and absolute as his defined and demarcated space in the said property in lieu of his undivided share in the said property, the portion of his allotment being shown in the Second Schedule hereunder written." The Second Schedule of the agreement declares the share of said Narendra Nath Saha, predecessor-in-interest of the respondent Nos.1 to 3 in following words:- "ALL THAT Unit No. B-3 containing an area of 239.78 sq.ft. more or less in the Ground-floor and Unit No.G-1 containing an area of 380.42 sq.ft. and the roof area of 280 sq.ft. and also Unit No.A-1 containing an area of 2873.80 sq.ft. more or less both in the First floor. All the aforesaid three units situate at the multi-storeyed building named Hiralal Commercial Complex in the said premises No.35 Acharya Prafulla Chandra Road fully described in the First Schedule hereinabove mentioned and all the three allotments have been shown in the map or plan annexed hereto."
(3.) Thus, the preliminary decree passed in CS No.296 of 1997 is absolutely clear that partition of the suit property would be effected as per the agreement in terms of undivided 1/5th share of the parties. In other words, 1/5th share of the parties in the suit premises was declared by this Court while passing preliminary decree and the Partition Commissioner was directed to effect partition in terms of the agreement arrived at by and between the parties sometimes in the year 1994.;