A partition of a property can be only among those having a share or interest in it. A person who does not have a share in such property cannot obviously be a party to a partition. “Separation of share” is a species of partition. When all co-owners get separated. It is a partition. Separation of share refers to a division where only one or only a few among several co-owners get separated, is upheld by the high court of Calcutta, by the learned bench of The Honourable justice Subrata Talukdar, in the case of Bina Ghosh and others V. Mohanlal Ghosh and others, FMA 273 of 1985.
This is an appeal challenging the judgment and order dated 26th April, 1984 in Title Appeal passed by the Ld. District Judge at Howrah remanding a partition suit back to the Trial Court with the direction for appointment of a new Partition Commissioner for partitioning the properties in terms of the preliminary decree.
The appellants are the plaintiffs in the suit being for partition of suit properties comprising both ‘bastu’ and ‘bazar’ lands (hereinafter referred to only as ‘bastu’ and ‘bazar’ property respectively). The respondents in this appeal are the defendants in the suit.
By judgment and decree dated 29th April, 1978 the Trial Court, being the Court of the Second Subordinate Judge, Howrah, was pleased to decree the suit in preliminary form on contest against the defendants. While so decreeing the Ld. Trial Court declared that the plaintiffs possess one by sixth share in the suit property which were directed to be amicably partitioned within three months from the date of the decree.
The learned court held that while decreeing the suit in final form the Ld. Trial Court was pleased to, inter alia, hold that the Partition Commissioner expired on 7th November, 1983, that is after filing of his report in Court on the 5th of October, 1983. Therefore, there is no scope to bring the Partition Commissioner for cross-examination and the final decree requires to be decided on the basis of the papers already on record.
The Trial Court further found and stated out that the defendants have taken the objection that the Partition Commissioner delayed in filing his final report, the map submitted in respect of the report is wrong and the valuation of the property has been arbitrarily fixed. The Trial Court found that no prayer was made on behalf of the defendants to cross-examine the Partition Commissioner and, the report of the Ld. Partition Commissioner reflects the evidence of both the plaintiffs and the defendants.
Judgement reviewed by Rani Banerjee