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CASE NO.: Appeal (civil)  5297 of 2005

PETITIONER: Gour Hari Maity & Ors

RESPONDENT: Shew Shankar Shaw & Anr

DATE OF JUDGMENT: 18/10/2006

BENCH: A.K.MATHUR & LOKESHWAR SINGH PANTA

JUDGMENT: JUDGMENT O R D E R

               Heard learned counsel for the parties.

               We have perused the order of the trial court as well as  of  the High Court.. A suit  for partition was filed by Gour Hari Maity &  Ors. with the following prayers :                 " a)    for preliminary decree as per share of  the plaintiffs mentioned above.                 b)      for appointment of survey  commissioner.                 c)      for final decree after holding  commission as per preliminary decree.                 d)      for costs of the suit.                 e)      for any other relief/reliefs which the  plaintiffs may be entitled under the law and equity.  Your petitioner as in duty bound shall ever pray."                                  One Chhangur Shaw died on 20.12.1962 leaving behind  his wife Munga Debi and his daughter Sumitra. Sumitra had two  sons; Gayadin and Munnalal. Munga Debi who had a half share  transferred her half share =,  =   to Gayadin and Munnalal. The  property was being looked after by Shew Shankar Shaw at Calcutta  whereas  Munga Debi and Sumitra were residing at Benaras (U.P.)  Thereafter, it appears that a suit was filed by Munnalal and others for  injunction and possession against Shew Shankar Shaw which was  contested by Shew Shankar Shaw but during the pendency of the  suit, Munnalal sold his share of the property to Shew Shankar Shaw  and rest of the property was sold to Gour Hari Maity and others. Gour  Hari Maity and others filed  a suit for possession and partition  impleading Shew Shankar Shaw as a defendant. Shew Shankar Shaw  contested the suit and took the plea of adverse possession.  Gour  Hari Maity and others did not prosecute their case and in that suit, an  application was filed by Shew Shankar Shaw claiming right of pre- emption. In the application for pre-emption moved by Shew Shankar  Shaw, he submitted that Gour Hari Maity is not prosecuting the suit  properly and, therefore, he may be transposed as a plaintiff and his  right for pre-emption may be decided in the matter.  Unfortunately,  the trial court accepted  the prayer of Shew Shankar Shaw and  transposed him as a plaintiff in the suit filed by Gour Hari Maity and  proceeded to decide the partition suit and application for pre- emption. The trial court disposed of the suit declining  the prayer of  the transposed plaintiff Shew Shankar Shaw for right  of pre-emption.   In that suit it was held that plaintiffs (Gour Hari Maity and others )  were entitled to get partition by mets and bounds and a preliminary  decree was passed. Shew Shankar Shaw was given 1/4th share in  respect of the suit  property and  separate possession by metes and  bounds and it was ordered  that Gour Hari Maity & others were

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entitled to 3/4th share jointly and the parties were given two months’  time from the date of the order to effect partition by metes and  bounds amicably, failing which any of the parties will be at liberty to  apply to court for partition by metes and bounds by way of  appointment of a pleader  Commissioner and the application for pre- emption was dismissed on contest.

               Aggrieved against this order, Shew Shankar Shaw ( the  transposed plaintiff) approached the High Court challenging the order  and decree passed by the trial court. The High Court confirmed the  3/4th share of Gour Hari Maity and others and granted right of pre- emption in favour of Shew Shankar Shaw and directed the matter be  remanded back to the court below for the purpose of valuation of  3/4th share held by the respondents ( the appellants before us) and  to direct and effect sale thereof to the appellant ( the respondent  before us) provided he pays  the value as fixed by the court and in  the manner to be directed by the court. Aggrieved against his order   of the High Court  the present appeal has been  preferred by the  appellants.

               Though we do not appreciate the approach of the trial  court in transposing  the defendant as plaintiff  in a suit for partition  filed by Gour Hari Maity & others ( the appellants herein)  and  deciding the rights of the parties but  the trial court did it for the  benefit of the plaintiff and others  and as the suit has already been  decreed in favour of Gour Hari Maity & others ( the appellants before  us) and their 3/4th share has already been determined and direction  was given to settle amicably  and if not to apply before court  for  appointment of pleader Commissioner who will make proper division  by metes and bounds. The High Court has, of course, reversed the  finding of the trial court to the extent of pre-emption and directed  that the respondents herein have a right of pre-emption and directed  the trial court to determine the valuation in case the respondents  herein are interested in buying on the amount determined by the  court and in the manner to be directed by the court.  So far as  this  part of the impugned order is concerned, we need not interfere  because it will be open for the court to determine  the valuation of  3/4th share  of the property in question i.e. 14/1A and in case the  respondents are willing to pay that amount determined by the court  then the decree may be passed in favour of the respondents.  It will  be open for the court to determine the fair market value of the  property in question. With these observations, the appeal is disposed  of. There will be no order as to costs.