BIRENDRA NATH SAHA Vs. CHANDANA SAHA

JUDGEMENT

(1.) Both the aforesaid applications have been taken out by the defendants Nos. 1 2 and 3 being the heir, heiress and/ or successor-in-interest of one Sri Narendra Nath Saha since deceased. The first mentioned application was taken out for setting aside of the decree dated 7th December, 2000 passed in the aforesaid partition suit and also for relief of declaration that the report prepared by the Commissioner of Partition is void and cannot be acted upon. The second mentioned application (G.A. No. 1461 of 2005) was taken out for setting aside of the report of the Commissioner of Partition and for appointment of a new Commissioner of Partition to prepare a report in terms of the agreement annexed with the plaint.

(2.) The plaintiff aforesaid filed the suit for partition in respect of a building and premises No. 35, Acharya Prafulla Chandra Road, Kolkata which is a building of several storeys, praying for a preliminary decree declaring that the plaintiff is entitled to 1/5th share in the suit property and also for a final decree as per the said share of the plaintiff and the defendants in the suit property declared on the basis of agreed allotments in an agreement being Annexure-'A' to the plaint. As none of the defendants appeared, the said suit was decreed in preliminary form by His Lordship, the Hon'ble Justice Amitava Lala (as His Lordship then was) on 16th February, 1999. Relevant portion of the said decree which Is relevant for the purpose of the suit is set out hereunder :

(3.) Thereafter the learned Commissioner of Partition pursuant to the said preliminary decree took steps for furnishing returns of the Commission to the Court. in course of her Commission work, it appears, she engaged a surveyor and valuer and obtained a report from him and then she finally submitted her returns of Commission in the Court on or about 28th August, 2001. At that stage no exception was taken to the report of the Commissioner. On or about 7th December, 2002 the learned trial Judge having accepted the report of the Commissioner passed a final decree. Thereafter an application was made by the present petitioner and defendants Nos. 1, 2 and 3 for setting aside of the said decree and the said application was dismissed by the learned single Judge on 1st August, 2003. The petitioner preferred appeal against the order refusing to set aside the said decree dated 7th December, 2002.