Smti.Usha Rani And ORS v. Shri.Sekhar Mondal And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** CO/43/2024 IA No.CAN/1/2024 Smt Usha Rani and others Vs.

Shri Sekhar Mondal and others Ms. Anjili Nag ... for the petitioners Ms. G.Mini ... for the respondents November 11, 2024 [SR] Item Nos.1 1.

The instant revisional application has been filed by the defendant nos.3 to 12 in Title Suit No.48 of 2016 now pending before the learned Civil Judge Senior Division at Port Blair. 2.

The prayers in the suit are as follows:- a. A preliminary decree declaring that the plaintiffs have acquired right, title and interest over the half portion of the suit property in terms of the WILL executed by the deceased Basant Mondal.

b. Appointment of Commissioner for effecting partition of half share of the plaintiffs in the suit property. c. Final decree for partition allocating half share of the plaintiffs to the instant suit, divided, demarcated and separated portion of the suit property as shall be determined by the commissioner of partition.

d. Appointment of commissioner.

e. Appointment of receiver f. Injunction.

g. Cost of the suit.

h. To pass such other order or orders as this Hon'ble Court may deem fit and property in the interest of justice.

3.

The petitioners'

case, inter alia, is that the plaintiffs/opposite parties have sought preliminary decree over half portion of the suit property in terms of a WILL executed by the deceased testator of one Basant Mondal.

4.

The revisionists/defendants have sought the partition on the property on the basis of law of succession. 5.

After filing of the suit, terms of settlements were entered into between the plaintiffs and defendants and an application under Order 23 Rule 3 of the Code of Civil Procedure was filed in the Court below to record compromise and decree the suit. 6.

The Court below surprisingly rejected the said application on the ground that the suit was not one for partition. 7.

This Court is surprised to go through the order dated 04.10.2024 in the light of the prayers in the plaint as set out herein above.

8.

The suit was indeed for partition. The rival contention was that one parties sought the division of the properties on the basis of the WILL of a deceased testator and the other sought partition under the law of succession.

9.

Both the parties have in essence sought partition. They have now compromised and have entered into the terms of settlement which have been filed in Court below. 10.

Learned counsel for the opposite parties Ms.G.Mini, wholly and completely supports the stands of the revisionist. 11.

In the backdrop of the above, the impugned order No.40 dated 04.10.2024 shall stand set aside. There shall be a decree

in the preliminary form as per the terms of settlement dated 24.06.2024 filed in the Court below 12.

Let the decree be drawn up expeditiously by the Court below.

13.

Let a Commissioner of Partition be appointed by the Civil Judge, Senior Division upon receipt of copy of this order within a period of ten days thereof.

14.

Upon receipt of the report of the Commissioner of Partition and after following due process of law, let a final decree be passed.

15.

The above order is passed by consent of the parties. 16.

The revisional application is allowed and disposed of. 17.

There shall not order as to costs.

18.

Urgent photostat certified copy of this order, if applied for, be given to the parties upon compliance of all formalities. ( Rajasekhar Mantha, J. )