In the High Court at Calcutta

Civil Appellate Jurisdiction

Appellate Side

The Hon’ble Mr. Justice Sabyasachi Bhattacharyya

And

The Hon’ble Mr. Justice Supratim Bhattacharya

F.A. No. 484 of 2025

Yashwant Chabria

-Versus-

Charan Kumar Chabria and others

For the appellant : Mr. Ashok Banerjee, Sr. Adv.,

Mr. Asif Hussain,

Ms. Shreyasi Nath, ... Advs.

For the respondent no.1 : Mr. Sabyasachi Chowdhury, Sr. Adv.,

Mr. Sib Sankar Das,

Mr. Naman Chowdhury,

Mr. Subhrojyoti Mookherjee,

Mr. Ranit Roy, … Advs.

For the respondent no.2 : Mr. Ashim Kumar Routh,

Mr. Anirban Ray,

Mr. Subhayan Barik, ... Advs.

Heard on : 23.06.2026

Reserved on : 23.06.2026

Judgment on : 02.07.2026

Sabyasachi Bhattacharyya, J.:-

1. The defendant no.1 in a partition suit has preferred the instant appeal

against the final decree of partition passed therein.

2. Learned senior counsel for the defendant no.1/appellant argues that despite

this Hon’ble Court having appointed Joint Partition Commissioners in

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connection with a previous first appeal preferred against the preliminary

decree under Order XXVI Rules 10 to 13 of the Code of Civil Procedure (for

short, “the Code”), the learned Trial Judge, while accepting the Partition

Commissioners’ report, denied the defendants the opportunity to cross-

examine the Commissioners, which vitiates the final decree of partition

based on such report.

3. Learned senior counsel places reliance on an order dated September 29,

2023 whereby, post-disposal of the earlier first appeal, a co-ordinate Bench

of this Court had discharged one of the Joint Partition Commissioners

appointed by this Court on the prayer of the said Commissioner. It is

submitted that by dint of such discharge without affording an opportunity to

the appellant to cross-examine the Commissioner, the report authored by

the Joint Commissioners is itself rendered invalid. Even in the said order, it

is submitted, the co-ordinate Bench had permitted the appointment of

another Commissioner in place of the outgoing Commissioner. Thus, it is

contended that there was no bar for the learned Trial Judge to appoint a

different Commissioner and/or to afford the opportunity to cross-examine

such newly appointed Commissioner as well as the Commissioner who

continued. However, the learned Trial Judge, despite having permitted such

cross-examination earlier, with the specific observation that there cannot be

a better weapon than cross-examination to discover the truth, subsequently

recalled his own order on the basis of the order of this Court passed in a

disposed-of appeal. Such recall, it is contended, is amenable to challenge in

the present appeal as well and, as such, ought to be set aside.

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4. Learned senior counsel next argues that the defendants, including t he

appellant, filed specific written objection to the Commissioners’ report, all

the more entitling the defendants to cross-examine the Commissioner. It is

highlighted that the report of the Partition Commissioners comprised merely

of two different plans, without specifically allocating any portion to either

party. The defendants, who are in existing possession of the first floor and

the second floor of the suit building, were not allotted the said floors by the

impugned final decree. It is argued that such deviation from the existing

possession is contrary to the established practice followed in partition suits,

where prior possession is taken into consideration while allotting specific

portions of the suit property to the parties in the final decree.

5. Secondly, it is argued that the allotment of particular portions by the

impugned final decree deviates from the preliminary decree passed in the

suit.

6. Learned senior counsel appearing for the appellant points out that the mere

reluctance of the Advocate Commissioner, who was apparently a practising

advocate of this Court, to face cross-examination could not be a valid reason

to deny the opportunity to the appellant to cross-examine him.

7. Thus, it is argued that the impugned judgment and decree are contrary to

law and ought to be set aside.

8. Learned counsel for the defendant/respondent no.2 adopts the arguments of

the appellant and further contends that no allotment was made by effecting

partition inter se the defendant nos.1 and 2. It is argued that the Court,

while finally decreeing a partition suit, is required to allot shares to all the

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parties as far as practicable, which principle was violated by the learned

Trial Judge in the impugned judgment and decree.

9. It is further argued by the defendant/respondent no.2 that the suit building

is a four-storied one, out of which the ground floor and the top (third) floor

have been in occupation of the plaintiff/respondent no.1. On the other

hand, the first and second floors were gifted by the defendant/respondent

no.3 to the defendant no.1/appellant and defendant no.2/respondent no.2

jointly, along with possession of the said two floors being handed over to

defendant nos.1 and 2. Such pos session was completely overlooked in

making the allocations in the impugned final decree, whereby the entire

ground floor and first floor as well as mezzanine floor, along with 50%

garage space against cash compensation of Rs.15,17,220/ - for the deficit

area, was allocated to the plaintiff/respondent no.1 in accordance with Lot-

A of the Partition Commissioners’ report. On the other hand, Lot-B was

allotted to the defendants, including the entire second floor flat, third floor

flat and 50% garage space against payment of the said compensation to Lot-

A. Thus, the first floor was not allotted to the defendants at all, thereby

disturbing their present possession.

10. The learned Trial Judge, it is next argued by the respondent no.2, came to

the finding that if the Joint Partition Commissioners’ report was not

accepted, there would be “complexity”, without any explanation regarding

such observation.

11. Thus, it is argued that the learned Trial Judge overlooked the specific

objections taken in writing by the defendant nos.1 and 2 and deprived them

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of the opportunity to cross-examine the Partition Commissioners, thereby

vitiating the Commissioners’ report and, consequentially, the final decree

passed in terms of the same.

12. Learned senior counsel appearing on behalf of the plaintiff/respondent no.1

opposes the submissions of the appellant and respondent no.2 and

contends that within the contemplation of Order XXVI Rule 10 of the Code,

the Commissioners’ report becomes a part of the record and cannot be

rejected or overlooked merely due to the lack of any cross-examination. The

right to cross-examine the Commissioner, it is argued, is not an absolute

right. Learned senior counsel relies on Misrilal Ramratan and others

Mansukhlal and others v. A.S. Shaik Fathimal (dead) by LRs. and others ,

reported at 1995 Supp (4) SCC 600, in support of such proposition.

13. Learned senior counsel for the plaintiff/respondent no. 1 next argues that

although the Partition Commissioners may adhere to the existing possession

as a matter of custom, the same is not an absolute proposition or principle.

In support of the said contention, learned senior counsel cites the judgment

of a co-ordinate Bench (of which one of us was a part) in Hemarun Sanyal v.

Hirak Sanyal and Others, reported at 2024 SCC OnLine Cal 10385.

14. Learned senior counsel for the plaintiff/respondent no.1 argues further that

the Partition Commissioners’ report and the plans comprising the same

distribute the property in a just and equitable manner in terms of the

preliminary decree. Hence, it is submitted that mere lack of opportunity to

cross-examine the Partition Commissioners ought not to be a determinant of

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the legality of the impugned final judgment and decree of partition. The

appeal, it is thus submitted, ought to be dismissed.

15. In order to adjudicate the instant appeal, the following two cardinal issues

are required to be decided:

(i) Whether the learned Trial Judge was justified in refusing to grant

opportunity to the defendants to cross -examine the Partition

Commissioners;

(ii) Whether the denial of opportunity to cross -examine the Partition

Commissioners to the defendants vitiates the final decree of partition.

16. The above issues are decided as follows:

(i) Whether the learned Trial Judge was justified in refusing to

grant opportunity to the defendants to cross -examine the

Partition Commissioners

17. For the sake of convenience, the chronology of events leading to the

impugned judgment and decree is set out below:

Date Event

November 28, 2008 Preliminary decree of partition passed.

… … … …

FAT No.63 of 2009 (FA No.410 of 2009) filed

by defendant no.3 against the preliminary

decree; cross-objection bearing COT No.40 of

2010 also filed by the plaintiff against the

said decree.

December 20, 2021 A co-ordinate Bench of this Court directed

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preparation of two plans, one assuming that

the defendant no.3/appellant therein had no

share in the property, and another, taking

into account the fact that he succeeds in the

suit and is adjudged to have 50% share in

the property. Two practising advocates of

this Court were appointed as Joint

Commissioners of Partition to prep are a

report with a plan for partition of the subject-

property, with liberty to appoint valuers,

surveyors, chartered engineers and

supporting staff in consultation with the

parties to implement the order.

September 19, 2022 Another co-ordinate Bench of this Court

dismissed the first appeal and the cross

objection against the preliminary decree,

observing inter alia that whatever the deed of

gift executed by defendant no.3 in favour of

defendant nos.1 and 2 may say with regard

to the possession of the defendant nos.1 and

2/donees in the suit premises is not

determinative of their share or allotment that

were to be made in the final decree. The co-

ordinate Bench also directed the learned

Trial Judge to take into consideration the

report filed by the Joint Partition

Commissioners in the final decree

proceeding; however, observing that the

acceptance of the said report was left to the

discretion of the learned Trial Judge and that

the parties shall be heard on the said report

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before acceptance.

May 1, 2025 Special Leave to Appeal (C) No.14487–14488

of 2023, preferred against the judgment of

the co-ordinate Bench affirming the

preliminary decree, was dismissed.

April 1, 2023 In the final decree proceeding, the learned

Trial Judge granted liberty to the defendants

to file written objection against the final

report.

September 2, 2023 The plaintiff verbally submitted before the

Trial Court that there was no need of

examination of the learned Advocate

Commissioners for acceptance of the

Commissioners’ report as the Commissioners

had only complied with the direction of this

Court, to which the opposite parties raised

objection. The learned Trial Judge directed

the plaintiff to take proper steps for

acceptance of the Commissioners’ report.

September 16, 2023 The Trial Court observed that the learned

Advocate Commissioner was reluctant to

enter the witness box to face the cross -

examination; however, “it is settled law that

there cannot be a better weapon than cross-

examination to discover the truth and it is

through cross-examination that the veracity

of document can be checked ”. The learned

Trial Judge further observed that “the need of

the hour wanted to examine the learned

Advocate Commissioner before acceptance of

the report submitted by him” and accordingly

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directed the Advocate Commissioner to be

intimated for being present on the next date

fixed for his examination.

October 10, 2023 An application under Section 151 of the

Code, for recall of the order dated September

16, 2023, filed by the plaintiff with a put-up

petition, was fixed for hearing by shifting

back the date from December 15, 2023 to

December 7, 2023 in view of the direction of

this Court for expeditious disposal, recording

that the defendants sought to file written

objection against the recall application.

September 29, 2023 A co-ordinate Bench of this Court took up

the disposed-of appeal, bearing FA No.410 of

2009, along with COT No.40 of 2010, upon

verbal mentioning by one of the Joint

Partition Commissioners, seeking his

discharge on the ground that, pursuant to

the directions of the Trial Court, he had

appeared on more than one occasion before

the Court in connection with the report and

had been directed again to appear in the

same connection. The co-ordinate Bench

observed that according to the practice

followed in this Court, an officer appointed by

it is only in rare circumstances directed to be

personally present in Court to explain a

report and that if any objection to the report

of the officer is made, it is taken as an

exception to the report in the form of an

affidavit, to be dealt with by the parties and

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to be adjudicated by the Court on affidavits.

Hence, on the prayer of one of the Advocate

Commissioners, he was discharged, holding

that the Trial Court was free to appoint any

Commissioner in his place and stead, with

the rider that the outgoing Commissioner

shall not be further summoned to appear in

the Trial Court and to adjudicate any

objection to the report in the manner

indicated above.

January 6, 2024 The Trial Court, taking note of the order of

the co-ordinate Bench dated September 29,

2023, recalled its order dated September 16,

2023 to the extent that an opportunity of

cross-examining the Advocate Commissioner

was given to the defendants.

March 16, 2024 The Trial Court, upon considering the

objections raised by defendant nos.1 and 2 to

the Partition Commissioners’ report, adverted

to such objections and accepted the final

report dated March 31, 2022 submitted by

the Joint Partition Commissioners.

January 13, 2025 CO No.1443 of 2024, filed by the defendant

nos.1 and 2 against the order dated March

16, 2024, accepting the Commissioners’

report, was taken up for hearing by a learned

Single Judge of this Court. It was recorded

in the order that the learned Senior Advocate

for the defendant nos.1 and 2 submitted that

it would be difficult for the defendants to

accept any other allotment apart from the

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allotment which comprised of the first floor,

by reason of the defendant no.1 occupying

the first floor portion. It was also recorded

that the learned Advocate ( now Senior

Advocate) representing the plaintiff submitted

that the plaintiff was ready and willing to

accept the alternative allotment, that is,

either allotment of Lot-A or composite Lots-B

and C, in terms of the Commissioners’ report.

The matter was adjourned to grant

opportunity to the defendant nos.1 and 2 to

indicate their choices of allotment of either

Lot-A or Lots-B and C, which form ed a

composite allotment.

February 11, 2025 The learned Senior Advocate appearing for

the defendant nos.1 and 2/petitioners

submitted before the learned Single Judge in

connection with CO No.1443 of 2024 that the

petitioners would take some more time to

deliberate on their choice of allotment in

terms of the observation made in the order

dated January 13, 2025, upon which the

matter was adjourned further.

July 2, 2025 In view of non-appearance of the petitioners

at the time of call, CO No.1443 of 2024 was

dismissed for default by a learned Single

Judge of this Court.

June 13, 2025 The final decree impugned in the present

appeal was passed in terms of the

Commissioners’ report, allotting the Lot-A

property, comprised of the entire ground

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floor, the entire first floor flat, mezzanine

floor and 50% of the garage space and

granting cash compensation of

Rs.15,74,220/- as compensation for the

deficit area, to the plaintiff/respondent no.1

herein. Lot-B, comprised of the entire second

floor and third floor flat, along with 50% of

garage space, were allotted to the defendants

against payment of the aforesaid amount as

compensation to Lot-A.

18. Certain salient features of the matter are required to be considered. In the

initial order appointing the Joint Partition Commissioners dated December

20, 2021, the said Commissioners were directed to prepare two plans,

respectively assuming that the defendant no.3 had no share in the property

and assuming that he would be adjudged to have 50% share in the property.

The Commissioners were directed to prepare a report with a plan for

partition, if necessary appointing valuers, surveyors, chartered engineers

and supporting staff in consultation with the parties.

19. In the judgment dated September 19, 2022 passed in FA No. 410 of 2009

and COT No. 40 of 2010, the preliminary decree was affirmed by a co-

ordinate Bench of this Court, by directing the learned Trial Judge to pass

final decree by taking into consideration the Commissioners’ report.

However, it was kept open to the discretion of the learned Trial Judge as to

whether or not to accept such report. Furthermore, the co-ordinate Bench

directed that the parties would be heard on the report before acceptance.

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20. Hence, the judgment of the First Appellate Court affirming the preliminary

decree left it open to the discretion of the learned Trial Judge to accept the

report, that too, after hearing the parties.

21. It is also to be taken into account that although it was this Court that had

appointed the Joint Partition Commissioners, the appointment was not in

respect of a suit pending in the Original Side of this Court, where the

practice and customs of this Court would apply, but under Order XXVI Rule

13 of the Code, in respect of a suit before a learned Civil Judge (Senior

Division). Thus, the procedure as provided in Rules 13 and 14 of Order XXVI

was applicable.

22. Under Rule 14 of Order XXVI of the Code, upon such enquiry as may be

necessary, division of the property into as many shares as directed by the

order appointing the Commissioners and allotment of such shares to the

parties, if authorised by the said order, and awarding owelty money, the

Commissioners were to prepare and sign a report allotting the share of each

party and distinguishing each share by metes and bounds. Such

report/reports were to be annexed to the Commission ers’ report and

transmitted to the Court. Thereafter, the Court, after hearing any objections

which the parties may have made to the report or reports was to confirm, vary

or set aside the same.

23. Under sub-rule (3) of Rule 14, where the Court confirms or varies the report,

the decree is to be passed in accordance with the same; but where the Court

sets aside the report/reports, it is to either issue a new commission or make

such order or orders as it thinks fit.

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24. The expression “after hearing any objections which the parties may make”

does not specifically stipulate any right to the parties to examine/cross-

examine the Commissioner as such. Under the regime provided by Rules 13

and 14 of Order XXVI, the Court has merely to give a hearing to the parties

on their objections to the report, upon which the Court may proceed either

to accept the report or vary or set aside the same. Thus, no statutory right

is available to the parties in terms to cross-examine the Commissioner.

25. However, the right of hearing contemplated in the said provisions broadly

encompasses a right to examine or cross -examine the Partition

Commissioners in the event any objection is taken to the report. Even in the

order dated September 29, 2023, the co-ordinate Bench of this Court did not

shut out the opportunity of cross-examination available to the defendants.

Although the Division Bench discharged one of the Partition Commissioners

and restrained the Trial Court from calling him further (including for cross-

examination), fact remains that the other Joint Com missioner who co-

authored the report was still available for cross-examination. Moreover, the

Division Bench, in the order dated September 29, 2023, also left it open to

the Trial Court to appoint any other Commissioner in place and stead of the

outgoing Commissioner. Thus, there was no bar to the Trial Court either to

appoint a new Commissioner with a direction to file a fresh report or to

permit cross-examination of the still-continuing Joint Commissioner who

had also authored the report.

26. Yet, the learned Trial Judge, vide order dated January 6, 2024, recalled its

earlier order dated September 16, 2023 to the extent that cross-examination

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of the Commissioner was permitted, without exploring the alternative

avenues as indicated above.

27. It cannot also be lost sight of that the order dated September 29, 2023 was

passed by the co-ordinate Bench in an already disposed-of appeal. Hence, it

cannot be said that the order precluded the Trial Court from adopting either

course of action - to permit cross-examination of the still-continuing

Partition Commissioner or to appoint a fresh Commissioner and direct a

fresh report to be filed to allocate the shares of the properties of the parties.

28. Hence, this issue is decided in the negative, holding that the learned Trial

Judge was not justified in precluding the defendant nos.1 and 2 from cross-

examining the Partition Commissioners merely on the basis of the order

dated September 29, 2023.

(ii) Whether the denial of opportunity to cross-examine the Partition

Commissioners to the defendants vitiates the final decree of

partition

29. The crucial question which arises is whether the denial of opportunity to

cross-examine the Partition Commissioners vitiates the preliminary decree

as a whole.

30. An important link in the chain of events is that the defendants had preferred

a revisional application against the order dated March 16, 2024 passed in

the suit bearing Title Suit No. 19 of 2005, whereby the Commissioners’

report was accepted, ultimately leading to the passing of the preliminary

decree on the basis thereof. The said revision, bearing CO 1443 of 2024, was

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ultimately dismissed for default vide order dated July 2, 2025 and was never

restored. Although the appellant seeks to argue that further continuance

with the said revisional application would be futile in view of the final decree

having been passed in the meantime, that is, on June 13, 2025,

nonetheless, nothing prevented the defendants from appearing before the

revisional court and pointing out to the learned Single Judge taking up the

revisional application that the same had been rendered infructuous and

seeking a disposal of the same/withdrawal of the same with the liberty to

the defendants to pursue the challenge taken to the order impugned therein

as a ground of the appeal to be preferred against the final decree. Section

105(1) of the Code provides that where a decree is appealed from, any error,

defect or irregularity in any order affecting the decision of the case may be

set forth as a ground of objection in the memorandum of the appeal

preferred against the decree. Thus, since the order dated March 16, 2024,

accepting the Partition Commissioners’ report, directly affected the decision

of the case, the aggrieved parties, that is, the defendant nos. 1 and 2 would

otherwise be entitled to set up any error, defect or irregularity in the said

order as a ground of objection in the memorandum of the present appeal.

31. However, such opportunity cannot be granted to the appellant now, in view

of the appellant having specifically challenged the said order by way of CO

No.1443 of 2024, which was dismissed for default, thereby attracting the

principle embodied in Order XI Rule 9 of the Code, which is applicable

mutatis mutandis to all proceedings before a Civil Court. A double remedy

cannot be provided to the self-same litigant against the same order, having

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chosen to permit a prior challenge thereto to be dismissed for default and

thereafter renewing such challenge afresh in the present appeal. Hence, the

benefit of Section 105(1) of the Code cannot be extended to the present

appellant in view of the dismissal for default of his challenge to the self-

same order accepting the Commissioners’ report, dated March 16, 2024, by

way of the earlier revisional application.

32. That apart, it was recorded in the order dated January 13, 2025 passed in

the said revisional application that the defendants/petitioners, through their

senior counsel, had submitted before the court that it would be difficult for

them to accept any other allotment apart from the allotment which

comprised of the first floor, by reason of the defendant no. 1 occupying the

first floor portion, to which the plaintiff’s counsel expressed the readiness

and willingness of the plaintiff to accept either of the alternative allotments,

be it Lot A or composite Lots B and C, thus leaving it upon to the defendants

to choose the lot which included the first floor. Even in a subsequent order

dated February 11, 2025, the revisional court recorded that defendant nos.

1 and 2/petitioners therein required more time to deliberate on their “choice

of allotment” in terms of the observation made in the order dated January

13, 2025, thus making it amply clear that the defendant nos. 1 and 2 had,

in principle, acceded to the proposal of accepting the allotment including the

first floor without raising any demur to the Partition Commissioners’ report,

on the ground of denial of the right to cross-examine the Commissioners or

otherwise. Hence, the defendant nos. 1 and 2 are now barred by the

principle of estoppel from re-agitating such issue afresh at this stage.

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33. Another aspect of the matter cannot be overlooked. There is a stark

distinction between the cross-examination of an ordinary witness in a suit

and that of a Partition Commissioner in a partition suit. In case of an

ordinary witness, cross-examination is essential to test the veracity of the

statements made in the examination-in-chief, the creditworthiness of the

witness, as well as to elicit admissions, if any, from the witness. This is

based on the principle that it is the deposition itself that goes on record as

evidence and ultimately forms a part of the record. If the adversary is

deprived of the opportunity to cross-examine a witness, the veracity of the

statements made in the examination-in-chief by a witness and the flaws in

the same would not be tested, thus, depriving the adversary of a vital right.

Based on such principle, it has been held by courts time and again that in

the event a witness avoids cross-examination and the adversary is deprived

of the right to cross-examine, the evidence of the witness is discarded as a

whole, with the only exception that the cross-examination has been

substantially concluded on the crucial issues involved and an

inconsequential part thereof remains unfinished.

34. However, the paradigm governing a Partition Commissioner’s evidence is

entirely different. The essence of a Partition Commission is the report

authored by the Commissioner. It is such report which forms a part of the

record. Thus, the scope of examining a Commissioner is limited to his report

and the objections taken thereto, unless, of course, the integrity/credentials

of the Commissioner itself is challenged, which has not been done in the

instant case.

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35. Unlike a Commissioners’ Report under Order XXXIX R ule 7 of the Code,

where the report is required to be proved by the Commissioner to be taken

as evidence, a Partition Commissioners’ report automatically forms a part of

the record. The only opportunity which is required to be afforded to the

party aggrieved by such report, as per the law, is to file an objection and

have a hearing on such objection. Hence, as opposed to an ordinary witness,

whose deposition is the crux of the evidence, in case of a Partition

Commissioner, it is the report and objections thereto which form a part of

the record and the right of cross-examination, if any, is report-centric and

not Commissioner-centric.

36. Hence, it is not as essential in case of a Partition Commissioner to afford an

opportunity to a party aggrieved with his report to cross-examine the

Commissioner as in case of an ordinary witness, where the evidence itself is

of moment.

37. If Order XXVI Rule 14(2) of the Code is read in such context, we find that

the right of having a hearing on its objection given to a party may or may not

include the right to cross-examine.

38. In Misrilal Ramratan (supra)

1

, the Hon’ble Supreme Court categorically held

that it is settled law that the report of the Commissioner is part of the record

and that therefore, the report cannot be overlooked or rejected on the

specious plea of non-examination of the Commissioner as a witness, since it

is part of the record of the case. The appellant argues that in the said case,

1

Misrilal Ramratan and others Mansukhlal and others v. A.S. Shaik Fathimal (dead)

by LRs. and others, reported at 1995 Supp (4) SCC 600

20

no objection was raised to the Commissioner’s report. However, the ratio

laid down by the Hon’ble Supreme Court was not objection-based but was a

general proposition, with or without objection.

39. As such, the lack of opportunity to the defendants to cross- examine the

Commissioner does not vitiate the Commissioners’ Report and/or the

acceptance of the same.

40. The only requirement under Rule 14(2) of Order XXVI of the Code was for

the court to give a hearing to the aggrieved parties on their objections to the

report, which has been extensively complied with in the present case. In the

order dated March 16, 2024, the learned Trial Judge elaborately discussed

the different points of objection urged and dealt with each of those vis-à-vis

the plans submitted by the Commissioners. Moreover, the earlier orders,

whereby opportunity to cross-examine granted to the defendants and

thereafter recalled, merged with the order dated March 16, 2024, accepting

the Commissioners’ report upon giving hearing to the defendants on their

objections thereto.

41. The defendants having chosen to have their challenge thereto, being CO

No.1443 of 2024, dismissed for default and not applying for restoration of

the said revisional application, cannot now be permitted to assail such

acceptance in the present appeal.

42. Even otherwise, to satisfy the conscience of this court, we carefully examine

the plans submitted by the Commissioners as a part of their report vis-à-vis

the objections taken thereto.

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43. One of the objections taken is that the defendants’ shares were not

demarcated inter se by metes and bounds. However, in the preliminar y

decree itself, the learned Trial Judge observed that the plaintiff do get a

preliminary decree for partition in respect of his half share in the schedule

property and directed the parties to effect amicable partition amongst

themselves. Thus, in the preliminary decree itself, which forms the premise

of the final decree and the partition to be effected by the Commissioners,

there was no direction to separately demarcate the shares of the defendants

inter se. Even in the order appointing the Commissioners, this court did not

direct the demarcation of the defendants’ shares inter se. Thus, we cannot

say that the Commissioners flouted Order XXVI Rule 14(1) of the Code of

Civil Procedure, as per which the property is to be divided into as many

shares as directed by the order under which the Commission was issued

and to allot such shares to the parties, if authorized by the said order. Also,

the allotments made were exactly in terms of the shares of the parties

declared in the preliminary decree and cannot be faulted on such count.

44. This also takes care of the objection taken by the defendant

no.2/respondent no. 2 to the effect that the final decree does not conform to

the preliminary decree, which argument has no basis whatsoever.

45. It is also contended by the appellant that the existing possession of the

parties was not adhered to while allocating shares to the parties in the

Partition Commissioners’ report.

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46. As held by this court in Hemarun Sanyal (supra)

2

, although it is a matter of

custom that the Partition Commissioner tries to adhere to the existing

possession while allotting shares, the said practice is not an absolute

proposition set in stone and possession is only honoured insofar as

practicable in the ultimate analysis. A certain amount of quid pro quo is

implicit in allotment of shares in a final decree of partition, since the wishes

of all parties cannot be satisfied by the Partition Commissioner. As long as

clearly demarcated and roughly equal areas of property are allotted to each

of the parties, none of the parties can insist upon the original possession

being retained.

47. If partition is to be effected as per the shares of the parties, the existing

possession almost invariably has to be altered in order to conform to the

extent of shares of the parties. In the present case, as evident from the

Partition Commissioners’ Report, if the first and second floors were to be

allotted to the defendants, it would much exceed their share in the property.

Moreover, we find from the records that ample opportunity was given to the

defendants to choose the lot containing the first floor, which was

deliberately avoided by them.

48. Even otherwise, from the allocation of shares finally accepted by the learned

Trial Judge, we find the same to be perfectly rational and just. Whereas the

entire first floor flat and the ground floor, which is much less in extent than

the other floors, have been allotted to the plaintiff/respondent no. 1, along

2

Hemarun Sanyal v. Hirak Sanyal and Others , reported at 2024 SCC OnLine Cal

10385

23

with 50% share in the garage and owelty money commensurate with the

deprivation of the plaintiff, the upper floors, being the second and third

floors, which are larger in extent than the ground floor, have been allocated

to the defendant nos. 1 and 2 who, by dint of the deed of gift executed by the

defendant no. 3, are entitled to 50% share in the property. In respect of

getting 50% share in the garage, the defendants have been directed to

compensate the deprivation of the appellant by paying owelty money to the

extent of such deprivation. Such allotment of shares to the parties is fully

commensurate with their respective shares as declared in the preliminary

decree and, thus, cannot be faulted.

49. The evaluation of owelty money was also based on valuers’ assessment as

per the direction of this Court appointing the Partition Commissioners.

Hence, there is no infirmity in that regard as well.

50. In fact, as rightly observed by the learned Trial Judge while accepting the

Commissioners’ Report, any other mode of allotment would be complex and

also absurd. If the existing possession was to be retained, the defendants

jointly would be getting the first and second floors whereas the plaintiff’s

allocation would be on the ground floor (which is much less in area than the

other floors) and the top (third) floor, thereby separating the two portions of

the plaintiff’s allocation by two floors, which would then belon g to the

defendants. In order to have access to the different portions of his share, the

plaintiff would then have to traverse the entire first and second floors to

move between the top floor and the ground floor on a daily basis. Such an

allocation, as opposed to the current allocation, would be absurd, and not

24

the contrary. Hence, even otherwise, upon careful scrutiny of the impugned

judgment and the Commissioners’ report which forms the basis thereof, we

do not find any error of law and/or fact in the allocation of portions between

the parties.

CONCLUSION

51. In view of the above, this Court is of the opinion that there is no scope of

interference with the impugned judgment and final decree of partition

passed by the learned Trial Judge.

52. Accordingly, FA No.484 of 2025 is dismissed on contest, thereby affirming

the impugned judgment and final decree of partition dated June 13, 2025

passed by the learned Civil Judge (Senior Division), First Court at Alipore,

District – South 24 Parganas in Title Suit No.19 of 2005.

53. Consequentially, CAN 1 of 2026 stands dismissed as well.

54. There will be no order as to costs.

55. Interim orders, if any, stand vacated.

56. A formal decree be drawn up accordingly.

(Sabyasachi Bhattacharyya, J.)

I agree.

(Supratim Bhattacharya, J.)