The High Court at Calcutta, in a civil revision, allowed a writ petition under Article 227 seeking to frame a preliminary issue on maintainability. The Court set aside the lower court order refusing this prayer in a property partition suit.
Impugned order set aside and a preliminary issue on maintainability directed to be framed.
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05.08.2024 (M/L-07) Ct.-19 (Susanta)
IN THE HIGH COURT AT CALCUTTA CIVIL REVISIONAL JURISDICTION
C.O. 531 of 2024
Smt. Alo Rani Pal -VsSmt. Gopa Mukherjee (Banerjee) & Ors.
Mr. Aniruddha Chatterjee,
Mr. Abir Lal Chakravorti,
… For the Petitioner. Mr. Argha Bhattacharjee,
…. For the O.P. Nos. 1 & 2.
Affidavit-of-service filed on behalf of the petitioner be kept with the record.
The instant application under Article 227 of the Constitution of India is at the instance of the defendant no.1 in a suit for partition and is directed against the Order No. 32 dated November 28, 2023 passed by the learned Civil Judge (Senior Division), Bankura, in the said suit being Title Suit No. 140 of 2022 .
The learned Trial judge by the order impugned has refused the prayer of the petitioner for framing a preliminary issue to determine the maintainability of the said suit.
The petitioner is contesting the suit with a defence that by virtue of a registered Deed of Partition bearing No. 64C for the year 1934, the suit properties have been already partitioned amongst the predecessors-ininterest of the parties, as such, the present suit is not maintainable.
The suit properties, if are already partitioned as alleged, the present suit for partition is not
2
maintainable; therefore, instead of the suit properties being left entangled in the present partition suit, the interest of justice demands that the maintainability of the said suit be determined on the preliminary issue of maintainability.
The learned Trial Judge therefore is requested to frame an issue as to whether the suit properties have already been partitioned by the Deed No. 64C for the year 1934, and depending upon the answer to the said issue shall take further steps.
To facilitate the said exercise, the order impugned is set aside; C.O. 531 of 2024 is thus allowed without any order as to costs.
Parties to act on the server copy of this order duly downloaded from the official website of this Court.
Urgent Photostat certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.
(Biswajit Basu, J.)
2 issues framed by the court
Whether a preliminary issue regarding maintainability should be framed in a partition suit where prior partition is alleged.
Whether the impugned order refusing to frame the preliminary issue should be set aside.
2 provisions across 1 enactments
Smt. Alo Rani Pal
Smt. Gopa Mukherjee (Banerjee)
Biswajit Basu
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
