1. Challenge is to the order no.395 dated December 7, 2007 passed by the learned Civil Judge (Senior Division), Third Court, Medinipur in Title Suit No.67 of 2006 thereby rejecting an application filed by the coplaintiff/ defendant no.2.
2. The short fact is that one Anil Chandra Mahapatra instituted a title suit being Title Suit No.120 of 1964 before the learned Sub-Ordinate Judge, First Court at Midnapore for partition of the suit properties as mentioned in the schedule of the plaint. The suit was decreed in the preliminary form in terms of the solenama of June 3, 1969. Thereafter, one Advocate commissioner was appointed and he submitted his report. The final decree for partition was passed on November 3, 1971. The stamp duty was submitted on September 18, 1971 and the final decree was engrossed on the stamp paper on November 3, 1971. The learned commissioner assessed the valuation of the suit property at Rs.60,000/- and he allotted the share to the four co-owners equally having the value of the property to the extent of Rs.15,000/- each. The coplaintiff/ defendant no.2 had 1/4th share in the suit property and he wanted to purchase the share of the three other co-owners by paying a total wealthy money of Rs.45,000/- in toto. The coplaintiff / defendant no.2 filed an application under Order 9 Rule 13 of the C.P.C. for setting aside the final decree and that application was converted into a misc. case being Misc. Case No.5 of 1972. The said misc. case had been disposed of on January 3, 2006 for non-prosecution. Now, the co-plaintiff/defendant no.2 is praying for depositing a sum of Rs.45,000/- as money as per final decree. That prayer has been rejected by the impugned order. So, this application has been preferred.
3. Now, the question is whether the impugned order should be sustained.
4. Upon hearing the submission of the learned Advocates of both the sides and on perusal of the materials on record, I find that the above facts are not disputed. It is also an admitted position that the suit property is a two storied building and assessment of the valuation was made to the extent of Rs.60,000/- only in the year 1972. Now, the co-plaintiff/defendant no.2 intends to purchase the shares of the other three co-owners by paying the offering the money of Rs.45,000/- to the rest three co-owners after a lapse of more than 35 years.
5. The contention of the Mr. Mahato is that consideration money shall be determined on the date of filing of the application and since the application was filed in the year 1972, the money as assessed earlier should be considered and his client should be permitted to purchase the entire suit property by paying a sum of Rs.45,000/- only to the other three co-owners in equal share. In support of his contention, he has relied on the decision of AIR 1987 Cal 210, AIR 1991 SC 700, 75 CWN 195 and AIR 1979 Cal 79 to the effect that the relevant date for determining the valuation under Section 4(1) of the Partition Act would be the date when the member shareholder undertakes to buy the share of the transferee provided such undertaking is given after share of the transferee has been ascertained by the Court in the preliminary decree. In the instant case, question of transfer to the outsider did not arise. All the four co-owners held partition of the suit property by filing a solenama and thereafter, a learned commissioner was appointed and he submitted his report assessing the valuation of the property in the year 1972. The decisions referred to relates to claim for purchase by a co-sharer when transfer was made to an outsider. It is not the situation. In the instant case preemption has been sought for under Section 3 of the Partition Act. Moreover, the valuation was assessed in the year 1972, that is, more than 35 years back and the co-plaintiff/defendant no.2 wanted to purchase the share of the three other co-owners by paying a nominal amount as assessed in the year 1972 by the learned partition commissioner by an application dated September 25, 2007. So, after lapse of several years, the co-plaintiff/defendant no.2 cannot be allowed to purchase the suit property by offering valuation of Rs.45,000/- only to the rest 3 co-owners. The above decisions cited by Mr. Mahato are not applicable in the instant situation.
6. The learned Advocate for the defendants submits that reassessment of valuation of the suit property may be made. The coplaintiff/ defendant no.2 may be allowed to purchase at the current price. Another final decree can be passed. He has placed the decisions of AIR 1991 SC 700 and AIR 1960 Cal 381. As regards the decision of AIR 1991 SC 700, it has been observed therein that the valuation shall be assessed as on the date of seeking courts leave, that is, on September 25, 2007 in the instant case. This is not the case of the co-plaintiff/defendant no.2. The other decision relates to sale to a stranger. So, these two decisions are not applicable in the instant case. Since the final decree has been engrossed on the stamp paper and the co-plaintiff/defendant no.2 did not pray for purchase of the current valuation, such submission cannot be accepted.
7. The learned Trial Judge has rightly rejected the application of the co-plaintiff/defendant no.2 I hold that there is nothing to interfere with the impugned order. So, this application fails to succeed.
8. It is, therefore, dismissed.
9. Considering the circumstances, there will be no order as to costs.
10. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.