Smt. Puja Devi v. Shri Hirdoy Narayan And ORS.
IN THE HIGH COURT AT CALCUTTA
[CIRCUIT BENCH AT PORT BLAIR] ...
CO/9/2023 Smt. Puja Devi ... Petitioner Vs.
Shri Hirdoy Narayan and Ors. ... Respondents Ms. A.S. Zinu ... for the Petitioner Ms. Yasmeen Begum ...for the Respondent No.1 October 11, 2023 [M.A. Mobin] Item No.10 The instant C.O has preferred against an order dated 04th January, 2023 passed by the learned District Judge directing the Tehsildar, Port Blair to re-allot the share of the parties by metes and bound keeping in view the present possession of the parties on the suit property. The learned Advocate for the petitioner submits that the report of the Tehsildar is in respect of a preliminary decree passed by the learned Trial Judge. The preliminary decree was never challenged by the defendant. By virtue of the preliminary decree the suit property was partitioned by metes and bound. The Tehsildar has submitted the report and the report is in conformity with the preliminary decree. The order of the learned District Judge regarding re-allot the share is an illegal exercise of power vested upon him by which the present petitioner would be suffered irreparable
loss and injury. The suit for partition is pending since 2007. If the suit property was again partitioned the disposal of the suit would be delayed. He prayed for setting aside the impugned order passed by the learned District Judge. The defendants/opposite parties raised objection on the ground that the Tehsildar has prepared a map along with the report which included some non-suit properties consequently, the order of re-allotment and share by the Tehsildar is required.
In considering the impugned order passed by the learned District Judge it appears that the learned District Judge has perused the report wherein a temporary car shed falls on the portion allowed to Smt. Puja Devi (Petitioner). The District Judge is of the view that the said temporary structure may give rise future complications. Thus, the order of re-allotment was passed.
In considering the report of the Tehsildar it appears to me that the reports of the Commissioner has demarcated the share of the parties correctly and temporary car shed was measured an area of 25 square metres belonging to Shri Hirdoy Narayan (Appellant). The objection raised by the respondents herein regarding the inclusion of some non-suit plot of lands appears to me justified in perusing the map appended with the report itself. The temporary car shed which falls within the alleged area of Smt. Puja Devi is not in the matter of objection.
However, it is true that partition Commissioner must confine the act of partition within the suit property. It appears that though the report of the Commissioner is correct and in conformity with the preliminary Decree, but the Case Map appears to me defective which includes some non-suit properties. Thus, order of the learned District Judge regarding re-allotment appears to be not justified in factual matrix of this case.
Considering the same impugned order dated 4th January, 2023 passed by the learned District Judge is hereby modified.
The Commissioner i.e. the Tehsildar is not required to re-allot the share of the parties. The Commissioner i.e. the Tehsildar, Port Blair Tehsil is directed to prepare a fresh Map on the basis of the report which was prepared by him on 12th February, 2022. It is specifically directed to the Tehsildar that he must prepare a map only in respect of the suit properties. The Tehsildar is further directed to submit the Map before the learned District Judge as early as possible more preferably within December 2023. The instant CO 9 of 2023 is disposed of on the above observation.
As the Affidavit-in-Opposition is not used, the allegations made in the petition are deemed to have been not admitted.
(Subhendu Samanta, J.)