Case: Subhash Chandra Sen (D) thr. L.Rs. and Ors Vs. Nabin Sain (D) thr. L.Rs

1. Nabin Sain alias Nabin Chandra Sen filed a suit against Subhash Chandra Sen and Ors. for partition of his 3/5th share in the suit Schedule property. On 06.08.2001, trial court passed a decree granting the Plaintiff 3/5th share in the suit Schedule property on the following terms:This suit coming on this day for final disposal before Sri R.D. Kundu, Ld. Judge, Bench VIII in the presence of Sri J.M. Saha, Advocate for the Plaintiff, and of Sri Debrata Sen, Advocate for the Defendant. It is ordered and decreed that the suit be and the same is decreed on contest but without any costs. It is decreed that the Plaintiff do get a decree for partition holding that he has got 3/5th share in the suit property and the Defendants have got 2/5th share therein. It is further ordered that lot A property as shown in the sketch map filed by the Plaintiff be allotted to the Plaintiff and the lot B property be allotted to the Defendants. 4 ft. common passage to the east of the Lot A property would be kept open and the parties be permitted to raise boundary wall, the costs of which would be borne by the parties in equal share. Both the Plaintiff and the Defendants be allotted one tamp each for getting supply of Municipal Water. The sewage system and water supply system of the lot B property do pass through 4 ft. common passage and both the parties shall bear their respective costs for making arrangement of sewage system, pipe line system for supply of Municipal water. It is further ordered that if a door is fixed on the southern end of the common passage both parties would be at liberty to have keys for the said lock that may be used for closing the door and keeping the same in safe position2. The appeal filed by the Plaintiff challenging this decree was dismissed by the High Court on 05.11.2003. The Defendant filed an application before the trial court in the said case for amendment of the decree directing the sketch map submitted by the Plaintiff on 06.02.2001 to be marked as an exhibit and part of the judgment and decree by effecting necessary corrections, in order to make the decree executable. The trial court by order dated 06.09.2006 allowed the said application as under:Ordered that the petition dated 18.08.2006 filed by the Defendants is hereby allowed on consent but without cost. Let the sketch map submitted by the Plaintiff alongwith his petition dated 06.02.2001 be made part of the judgment and decree. Judgment and decree be amended accordingly3. The Plaintiff challenged the said order before the High Court of Calcutta. The High Court by its order dated 05.02.2008 has allowed the revision and set aside the order dated 06.09.2006 of the trial court. During the pendency of these proceedings, both the Plaintiff and the 1st Defendant died and their LRs have been brought on record at different stages. The LRs of the 1st Defendant and other Defendants have filed this appeal challenging the order of the High Court.

Reasoning:
5. We have carefully considered the submissions of the learned Counsel appearing for the parties. There is no dispute as to the share allotted by the trial court in favour of the parties. The Plaintiff was allotted 3/5th share and the Defendant was allotted 2/5th share in the suit Schedule property. It is clear that the sketch map relied on by the trial court was produced by the Plaintiff showing the frontal A lot property containing his 3/5th share delineated with yellow border and B lot property showing Defendants 2/5th share delineated with red border6. It is clear that the Plaintiff had also produced two other maps on 20.2.2001 and 12.6.2001. The Plaintiff had sought partition of the suit property in terms of the plan produced on 6.2.2001 which is evident from the application referred to above. As such, the Plaintiff cannot be permitted to say that the map produced with the application dated 6.2.2001 was not the map filed by him. It is not possible to give effect to the partition decree without a sketch map of the suit Schedule property. At the time of passing the judgment and decree, the trial court should have made the said map as a part of the decree so that the partition could have been effected as per the said sketch. No party should be allowed to suffer for the error of the court.