Shri.Hirday Narayan v. Smti. Puja Devi And ORS.
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION [CIRCUIT BENCH AT PORT BLAIR] PRESENT: THE HON'BLE JUSTICE HIRANMAY BHATTACHARYYA AND THE HON'BLE JUSTICE SHAMPA DUTT (PAUL) SAT/4/2025 SHRI HIRDAY NARAYAN ... APPELLANT VS.
SMT PUJA DEVI AND OTHERS ... RESPONDENTS For the appellant :Mr. K.M.B.Jayapal For the respondents :Ms. A.S.Zinu Heard on : December 18, 2025 Judgment on : December 18, 2025 HIRANMAY BHATTACHARYYA, J.
1.
This appeal is at the instance of the defendant no.2 and is directed against a judgment and decree dated June 20, 2024 passed by the learned District Judge, Andaman and Nicobar Islands in Title Appeal No.12/2017.
2.
The respondent no.1 filed a Title Suit No.23/2007 before the learned Civil Judge Senior Division, Port Blair praying for partition and recovery of possession in respect of the land bearing survey No.2317/1 situated at Aberdeen Bazar Village under Port Blair Tehsil, South Andaman claiming her 1/3rd share in the suit property.
3.
The suit was decreed in preliminary form thereby declaring that the plaintiff do get 1/3rd share in the suit land. It was further declared that the defendants are also entitled to get same share each in the suit property as mentioned in the schedule of the plaint. Parties were allowed three months time to effect mutual partition of the suit property failing which the respondent no.1 was given liberty to move the court for appointment of Commissioner to make the suit property partitioned by metes and bounds maintaining the existing possession as far as practicable but within the ambit of their share. 4.
Admittedly no appeal was preferred against the said preliminary decree. Thereafter, the Partition Commissioner was appointed who submitted a report and the learned Trial Judge passed a final decree of partition dated September 20, 2017 directing that the report submitted by the learned Commissioner be made part of the final decree.
5.
Being aggrieved by the final decree, the appellant preferred a Title Appeal No.12 of 2017 and learned District Judge by a judgment and decree dated June 20, 2024 allowed the said appeal in part and the final decree dated September 20, 2017 passed by the learned Trial Judge was modified partly by directing that the Commissioner reports submitted by the Tehsildar dated March 04, 2024 on the basis of the report dated February 02, 2022 be made part of the final decree.
6.
Being aggrieved by the judgment and decree dated June 20, 2024 passed in Title Appeal No.12 of 2017, the second defendant preferred the instant second appeal.
7.
Mr. Jayapal, learned advocate appearing for the appellant submits that the Partition Commissioner appointed by the learned Trial Judge submitted the report and allotted the portions of the suit plot to the parties by maintaining the existing possession of the respective parties in the suit plot.
8.
He further submits that the report filed by the commissioner filed before the Appellate Court did not take into consideration the existing possession of the parties and, therefore, the Final decree for partition is liable to be set aside.
9.
In course of the hearing of this appeal, Mr. Jayapal draws the attention of the Court to the Commissioner's Report annexed to the supplementary affidavit in support of his contention that the temporary car shed has been allotted in favour of the respondent no.1 though the same is under the possession of the appellant. 10.
Mr. Jayapal, places reliance upon a decision of the Hon'ble Supreme Court in the case of M. L. Subbaraya Setty and others vs. M. L. Nagappa Setty and others reported at (2002) 4 SCC 743 in support of his contention that the present possession of the parties are to be respected while making the allotment in the final decree proceedings. Mr. Jayapal submits that the concession given by the counsel on point of law cannot bind the litigant and in support of such contention he places reliance upon a decision of the Hon'ble
Supreme Court in the case of Union of India vs. Hira Lall and others reported at 91996) 10 SCC 574.
11.
The learned Trial Judge while passing the preliminary decree directed the parties to effect mutual partition of the suit property failing which the respondent was given liberty to move the Court for appointment of the Commissioner to make the suit property partitioned by metes and bounds maintaining the existing possession as far as practicable within the ambit of their share. 12.
The expression "as far as practicable" mentioned in the preliminary decree for partition fell for consideration before the Hon'ble Supreme Court in M. L. Subbaraya Setty (supra). It was held therein that when the Court directs that the present possession of the parties shall be respected, it means that if the partition of the property should be effected, then as far as possible the person in possession of a property should be allowed to retain it by equalization of share but it does not mean that a person out of possession of all immovable properties should not be allowed any part of the immovable property whatsoever.
13.
What follows from the said decision that while making an allotment, existing possession should be maintained to the extent possible and a person may also be allotted portion which is in the possession of other person.
14.
Being aggrieved by the final decree passed by the Trial Court, the appellant herein preferred the Title Appeal. It is not in dispute
that a further report was called for by the first appellate court from the commissioner and pursuant thereto, the commissioner submitted a report.
15.
The learned Judge of the first appellate court recorded that the learned advocate for the appellant and the respondent no.1 had no objection to the said report. Mr. Jayapal would contend that such submission was made by the learned advocate for the appellant without any instructions from the client to such effect. 16.
Order XXVI Rule 14 (2) of the Code of Civil Procedure Code states that if the partition commissioner prepares and signs a report and the same is transmitted to the Court, the Court, after hearing any objections, which the parties may make to the report or reports shall confirm, vary or set aside the same.
17.
Even if the contention of Mr. Jayapal is accepted that the appellant did not instruct his advocate to make any submission on this issue of acceptance of the report but the fact remains that objection to the partition commissioner's report was not submitted by the appellant.
18.
The learned Judge of the First Appellate Court after going through the Commissioner's Report arrived at a factual finding that separate 1/3rd share each has been allotted to the respective parties. Said finding does not suffer from perversity. 19.
That apart, the temporary car shed which the appellant claims to be the owner thereof is only in a small portion of the property allotted to the respondent and not in its entirety.
20.
In our considered view, in the absence of any objection to the report of the commissioner being filed by the appellant, the learned Judge of the first appellate court was right in accepting the said report and passing a decree, in accordance with the same. 21.
There is no quarrel to the proposition of law laid down by the Hon'ble Supreme Court in Union of India vs. Hira Lall and others (supra) that a concession on a question of law cannot be said to be binding on the litigant. The said decision cannot come to the aid of the appellant in the case on hand as no concession on point of law appears to have been made by the learned advocate for the appellant herein before the First Appellate Court.
22.
This Court does not find any question of law far less substantial question of law involved in this appeal. 23.
In view thereof, the instant appeal is dismissed at the stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. 24.
Urgent Photostat certified copy of this judgment, if applied for, shall be granted to the parties as expeditiously as possible, upon compliance of all formalities.
[ ( HIRANMAY BHATTACHARYYA, J. ) I agree.
( SHAMPA DUTT (PAUL), J. )