Full Judgment
GA No.121 of 2016 CS No.282 of 2013 IN THE HIGH COURT AT CALCUTTA Ordinary Original Civil Jurisdiction ORIGINAL SIDE NILIMA MISHRA & ORS.-Versus KRISHNA KUMAR MISHRA Appearance: Mr.Rupak Ghosh, Adv.Mr.Soumen Das, Adv...for the petitioner.
Mr.Anirban Roy, Adv.Mr.P.C.Palchowdhury, Adv...for the respondent.
BEFORE: The Hon'ble JUSTICE HARISH TANDON Date : 25th February, 2016.
The Court : The plaintiff has taken out the instant application for direction to sell the property in favour of Rudraksha developers in terms of the order dated 20th July, 2015.
According to the plaintiff, the said offerer has put a price as determined by the Court in an earlier order which is a reasonable and fair market value of the said property.
Several applications were taken out by the respective parties in couRs.of the said suit and orders were passed from time to time some of which are annexed to the present application, some have been annexed by the defendants in the affidavit-in-opposition filed today.
direction made opposition, by but this this Court Court for Though there was no filing permits the the affidavit-in- affidavit-in-opposition filed today be taken on record as the copy whereof has already been served Admittedly, on the the Advocate-on-record partition suit was filed of by the the plaintiff.
plaintiff respect of the property which forms the subject-matter therein.
in A preliminary decree is passed in the said suit declaring the shares of the plaintiff vis-à-vis the defendant.
Both the plaintiff and the defendants are holding equal shares in the property in terms of the consent preliminary decree.
The trouble starts thereafter when the plaintiff took steps for final decree.
One of such order which has some relevance on the respective stands of the parties was passed on 7th February, 2014.
the said order that since It is categorically observed in the parties have admitted their respective shares, it is open to the defendants to buy the share of the plaintiff and appointed the joint partition commissioners to act in terms of the preliminary decree.
It reveals from the order dated Commissioners 14th was January, 2015 challenged that by the the report defendant of the joint- as the joint- Commissioners of Partition opined that the property is impartible.
The opening sentence recorded by the Court in the said order reflected the intention of the defendant that the property is partible.
The Court did not accept such objection putforth by the defendant but in the later portion of the order appointed the valuer-cum-surveyor to inspect the property to ascertain whether the properties are partible or not and such report to be filed in sealed cover with the Registrar, Original Side of the High Court.
The matter was effectively taken on 22nd April, 2015 after the valuer-cum-surveyor order.
The Court submitted the report in terms of the said recorded the factum of impartibility of the property as opined as suggested by the joint-Commissioners for partition to be corroborated by the valuer-cum-surveyor.
In the report the Court subsequently invited the parties to buy out each other shares by payment of owelty money.
It subsequently transpired from the submission of the defendant that the valuation given by the valuer-cum-surveyor is not fair and reasonable price and thereafter the Court held that the price should be at Rs.45 lakhs and not Rs.28 to 30 lakhs as suggested by the valuer-cumsurveyor.
The Court thereafter permitted the defendant to pay a sum of Rs.22.5 lakhs as owelty money to buy the share of the plaintiffs and such amount was directed to be paid within six weeks from date.
The joint-Commissioners of Partition were further directed defendant to execute within six the deed weeks of from conveyance the date in favour of such of the deposit.
Admittedly, the defendant did not deposit the said amount within the time in terms of the order dated 22nd April, 2015 which prompted the plaintiff to take out an application for recalling and/or modification of the said order on the pretext that, the defendant has failed to deposit the money within the time indicated therein.
The defendant submitted that they could not arrange the entire amount in terms of the said order.
However, the Court thought it fit to extend the time enabling them to arrange the money as they were found to be in physical occupation of the property and shall be evicted therefrom in the event the property is sold by auction to a third party.
While extending the time to deposit the money, the Court took into account the conduct of the defendant in making the payment in terms of the order dated 22nd April, 2015 and put the default clause that in the event, the amount is not paid within the extended time.
It is open to the plaintiff to make an advertisement for sale of the property in question.
Even thereafter the defendant did not pay the said sum of Rs.22.50 lakhs and the plaintiffs thereafter took out another application for implementation of the order dated 28th July, 2015.
A point was raised by the defendant that the plaintiff can apply for sale of his portion allotted to him in terms of deed of partition dated 16th June, 2009 without disturbing the possession and the right of the defendant in respect of their occupied portion and right to enjoy the common facilities and amenities attached thereto.
A plea of res judicata was raised before the Court and it has been categorically held that such principle is not only restricted applicability between two different suits but has its at the different stages of the said suit.
It was specifically held that such principle applies to a present case and the Court should not permit the party to set the clock back during the pendency of proceeding.
It was further observed in the said order dated 14th October, 2015 that an adequate opportunity was given to the defendant to pay the owelty money, of that but in spite they failed to deposit such amount and it is creating and putting all kinds of resistance in implementing the earlier order passed by the Court.
To my mind the Court was generous enough to extend the time to deposit the said sum by the defendant despite an order that the publication be made and the sale to be effected.
The matter appeared on 14th December, 2015 when the Court observed that the defendant is persistent in creating obstructions in implementing the order and therefore, there is no justification in recalling or varying the earlier order and directed the parties to exchange affidavits.
The moment the defendant realised that she could not succeed forestalling the implementation of the earlier orders and an appeal APOT No.10 of 2016 filed before the Division Bench against the said order dated 14th December, 2015, got disposed of as the defendant apprises the Court that a review application against a preliminary decree is before the Hon’ble Single Bench.
The learned advocate for the plaintiff hands over the order dated 17th January, 2016 passed by I.P.Mukerji (J.that the said application for review is also disposed of without interfering with the preliminary decree.
However, the attention of the Court drawn to certain observation recorded in the said order to the effect that the plea of res judicata was kept open so, the point whether the property is partible or impartible.
It is contended by the defendant that once the property is partitioned by the parties amicably on the strength of a deed of partition, the subsequent suit for partition is not maintainable and to buttress the submission the reliance is placed upon the Division Bench of this Court in case of “Shiba Prasad Mukherjee versus Pradip kumar Mukherjee and another” reported in AIR1991 Calcutta 149.
The sheet anchor of the argument advanced by the defendant is that once the parties have amicably partitioned the property and in the event the property is impartible the portion held by other party may be allowed to be sold without disturbing the shares and possession of the defendant in respect thereof.
This Court does not find defendant.
any substance in the aforesaid submissions of the In a suit for partition the specific defense taken in the written statement relates to the maintainability of the suit in view of the fact that the property was partitioned amicably and therefore the suit for further partition is not maintainable.
There is no quarrel to the settled proposition of law that once the property is partitioned by meats and bounds the subsequent suit for the similar relief is not maintainable.
It is no longer res integra that the partition of the immovable property can be effected in two ways.
Firstly, the parties can amicably partition the property which is reduced in the form of a deed and registered with the registering authority; secondly, by an intervention of the Court.
The Court shall not be swayed by the nomenclature of the document but should restrict its scrutiny to the contents thereof.
Even the document is a style as a deed of partition but it does not appear that the properties were partitioned by metes and bounds and the shares have been separated to the exclusion of other.
There is not difficulty in holding such document as an arrangement between the parties for their exclusive possession and occupation.
Furthermore, the defendant agreed before the Court to pass a consent preliminary decree declaring the shares of the parties in respect of the subject properties.
Once the partition suit is filed, it is legally inferred that the parties whether arraigned as plaintiffs or defendants have right title and interest in respect of the same in common and joint.
Once the preliminary decree is passed declaring the shares of the parties such declaration is made in respect of the shares held jointly with the other parties and it is thereafter the Court proceeds to divide the shares to the exclusion of the others in the form of final decree.
The moment the defendant agreed for a preliminary decree doors in my view it forecloses her rights and closes all the to say that the property has already been partitioned amicably in terms of the deed of partition dated 16th June, 2009.
So far as the plea of property being partible or impartible is concerned, there has been an express and conclusive finding recorded in the order dated 22nd April, 20015.
Before proceeding to deal with the point agitated by the defendant and based upon the order dated 17th February, 2016, it is profitable to quote the observations recorded by Mr.Soumen Sen (J.which runs thus: “The report filed by the joint-Commissioners of Partition shows that the property is impartible.
The valuer appointed by this Court has also given his opinion that the said property is impartible.
In such circumstances, the option left in this matter is either to invite offers for sale of the suit premises or to give an opportunity to the co-sharers to buy out shares of the other co-sharer by payment of owelty money.
Xxxxx xxxx xxxx I have gone through both the reports.
I think that the report filed by Mr.P.K.Singal is little exaggerated compared to the report filed by Mr.Ganguly as the said valuer has failed to take into consideration the condition of the building and the impartible nature of the said building.” The said order has not been challenged before the Division Bench but the defendant has taken out an application for recalling the said order which according to him is still pending.
The fact remains that the order dated 22nd April, 2015 is staring at the face of the defendant as she could not succeed either in getting the said order varied, modified, vacated or recalled.
Once the Court conclusively recorded the findings that the property is impartible, such order remains in force throughout the proceeding unless the higher forums upsets the said order.
The observation recorded in the order dated 17th February, 2016 that the point of partibility or impartibility of the suit premises is kept open is merely surplusages as in an earlier stage of the proceeding there has been a conclusive findings on the above aspect.
I am not unoblivion of the provision contained under section 105 of the Code of Civil Procedure but so long the Court is in seisen of the interlocutary suit and has not passed the decree, the order attained finality till such time and the principle of res judicata can be extended and made applicable.
It is not open to the defendant to set a clock back after conceding to a preliminary decree that the property had already been partitioned on the strength of the said deed.
This Court finds substance in the submission of the plaintiff that much latitude and laxity was extend to the defendant in buying out the share of the plaintiff who are admittedly not in physical possession of the suit premises as the defendant is occupying a portion thereof.
If they find that the property is impartible, the recouRs.may be taken under the provision of the Partition Act, 1893 where the Court may direct the parties to buy each other’s shares instead of directing the property to be sold by public auction and third party is invited to purchase the same.
Several directions were passed by this Court bearing in mind the aforesaid provisions and there is no hesitation in my mind that the defendant though shown leniency sole have failed to deposit the amount so ascertained and the intention which is evident from his conduct is to put obstructions and obstacles in further progress of the suit for final decree.
Since the Court have permitted the plaintiff to invite the offer from the intending purchaser it appears that the offer has been received for an amount in tune with the valuation done in terms of the order dated 22nd April, 2015.
There is disinterested no in hesitation acquiring in the my mind property that by the paying defendant the is owelty money.
Even though I observed that much latitude was given to the defendant, this Court extend further latitude by permitting the defendant to pay the said sum of Rs.22.50 lakhs to the plaintiff within four weeks from date.
In default of payment there shall be an order in terms of prayers (a) and (b) of the notice of motion.
In such event, the joint-Commissioners of Partition shall execute the relevant deed in favour of the said purchaser within four weeks from the date of receiving the entire price so offered the intending purchaser is directed to deposit the entire consideration money to the joint-Commissioners after four weeks from date and within two weeks thereafter.
(HARISH TANDON, J.) A/s./DG-II