Vinod Kumar Mimani and ors. Vs. Brij Ratan Mimni - Court Judgment

Excerpt:
[mohan shantanagoudar, j.] these writ petitions are filed under article 226 and 227 of the constitution of india praying to quash the notice dt.31.7 2010 vide ann-c, & also sale notice dt.6.10 2010, vide ann-d, both issued by the r2 & to direct the respondents to consider the request of petitioners to extend the benefit of the scheme or to determine the amount payable & to grant reasonable installments to pay the remaining loan amountthe court : all the parties are represented. the original plaint has been produced from which it appears that the name of the original seventh plaintiff has been struck off and the original fifth plaintiff has been transposed as the defendant no. 19. the wife of the transposed defendant has been added as the defendant no. 20. several of the original defendants have died and their heirs have been brought on record. there was an amendment carried out in june, 2006 and a subsequent amendment carried out in june, 2010 in the plaint relating to this partition suit. there appears to be three groups with the plaintiffs having a common representation, the defendant nos. 1(a) to 18 having a common representation and the defendant nos. 19 and 20 being jointly represented. there are three party-receivers in place and accounts had been filed by the original joint receivers and handed over to the party-receivers. the parties have agreed to their respective shares and four sheets have been signed by the parties individually with the top sheet being signed by advocates representing the three sets of parties in respect of the four immovable properties that the parties claim to be joint owners of. a signed genealogical table has also been made over to court. the five sheets of paper bearing the signatures of all the parties should be retained with the papers. the properties are at 17, hanspukur first lane; 1/1, ganguly lane; 18, hanspukur lane and 23, maharshi debendra road. though there is a prayer for a preliminary decree to be passed, the parties have agreed as to the extent of their shares in the four properties. there are 21 shareholders each in respect of the first three properties and only 12 shareholders in respect of the fourth property above named. there appears to have been an arrangement arrived at between the parties as to the extent of their shares which may not be in consonance with the entitlement of the parties. since the parties have agreed to the arrangement, there is no impediment to such arrangement being approved subject to a commissioner being appointed and the commissioner ascertaining from all of the parties as to whether they have agreed to the arrangement recorded in the four sheets of paper filed in court. copies of the four documents have been appended to the petition as annexure-d thereto and the commissioner will ascertain within a month of taking charge as to whether the parties agree to abide by the arrangement or settlement recorded in the documents. if the parties agree to and affirm the settlement, the commissioner will proceed to assess whether the properties can be divided in accordance with the agreed shares. if the properties cannot be divided, the commissioner will invite offers for sale of the four immovable properties, which are said to be all tenanted, and place the offers received before court. mr. utpal bose, advocate is appointed commissioner at an initial remuneration of 3000 gm to be shared by the parties in accordance with their agreed shares in respect of the 17, hanspukur first lane property. it will be open to the parties to also offer to purchase each others shares out in such manner as the commissioner may approve. g.a. no. 1608 of 2010 is disposed of without any order as to costs. the commissioners report should be filed six months hence. the parties will be at liberty to apply for confirmation of sale in respect of the individual properties, if necessary. g.a. no. 2518 of 2008 is dismissed as not pressed. there will be no order as to costs. in the event the parties agree to and affirm the settlement in the four documents, there will be a preliminary decree according to the admitted shares. in the event there is any dispute, the parties will have liberty to apply for the shares to be assessed by court. urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.

Judgment:
The Court : All the parties are represented. The original plaint has been produced from which it appears that the name of the original seventh plaintiff has been struck off and the original fifth plaintiff has been transposed as the defendant no. 19. The wife of the transposed defendant has been added as the defendant no. 20.

Several of the original defendants have died and their heirs have been brought on record. There was an amendment carried out in June, 2006 and a subsequent amendment carried out in June, 2010 in the plaint relating to this partition suit. There appears to be three groups with the plaintiffs having a common representation, the defendant nos. 1(a) to 18 having a common representation and the defendant nos. 19 and 20 being jointly represented.

There are three party-receivers in place and accounts had been filed by the original joint receivers and handed over to the party-receivers. The parties have agreed to their respective shares and four sheets have been signed by the parties individually with the top sheet being signed by Advocates representing the three sets of parties in respect of the four immovable properties that the parties claim to be joint owners of.

A signed genealogical table has also been made over to Court. The five sheets of paper bearing the signatures of all the parties should be retained with the papers. The properties are at 17, Hanspukur First Lane; 1/1, Ganguly Lane; 18, Hanspukur Lane and 23, Maharshi Debendra Road. Though there is a prayer for a preliminary decree to be passed, the parties have agreed as to the extent of their shares in the four properties. There are 21 shareholders each in respect of the first three properties and only 12 shareholders in respect of the fourth property above named.

There appears to have been an arrangement arrived at between the parties as to the extent of their shares which may not be in consonance with the entitlement of the parties. Since the parties have agreed to the arrangement, there is no impediment to such arrangement being approved subject to a Commissioner being appointed and the Commissioner ascertaining from all of the parties as to whether they have agreed to the arrangement recorded in the four sheets of paper filed in Court.

Copies of the four documents have been appended to the petition as Annexure-D thereto and the Commissioner will ascertain within a month of taking charge as to whether the parties agree to abide by the arrangement or settlement recorded in the documents. If the parties agree to and affirm the settlement, the Commissioner will proceed to assess whether the properties can be divided in accordance with the agreed shares. If the properties cannot be divided, the Commissioner will invite offers for sale of the four immovable properties, which are said to be all tenanted, and place the offers received before Court.

Mr. Utpal Bose, Advocate is appointed Commissioner at an initial remuneration of 3000 GM to be shared by the parties in accordance with their agreed shares in respect of the 17, Hanspukur First Lane property. It will be open to the parties to also offer to purchase each others shares out in such manner as the Commissioner may approve. G.A. No. 1608 of 2010 is disposed of without any order as to costs.

The Commissioners report should be filed six months hence. The parties will be at liberty to apply for confirmation of sale in respect of the individual properties, if necessary. G.A. No. 2518 of 2008 is dismissed as not pressed.

There will be no order as to costs. In the event the parties agree to and affirm the settlement in the four documents, there will be a preliminary decree according to the admitted shares. In the event there is any dispute, the parties will have liberty to apply for the shares to be assessed by Court.

Urgent certified photocopies of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.