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NON-REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 3120 of 2009

SUBHASH CHANDRA SEN (D) THR. LRS. AND ORS.    … APPELLANTS  

VERSUS

NABIN SAIN (D) THR. LRS.       … RESPONDENTS

J  U  D  G  M  E  N  T

S. ABDUL NAZEER,  J.

1. Nabin Sain alias Nabin Chandra Sen filed a suit against Subhash Chandra

Sen and others 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

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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 position.”

2. 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

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decree.   Judgment  and  decree  be  amended accordingly.”

3. 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.   

4. Learned counsel  for  the appellants  submits  that  the appellants/defendants

filed an application on 06.02.2001 praying that the suit may be partitioned in terms

of the plan annexed to the application.  However, by oversight the said plan was

not exhibited.  The plan demarcates the common area.  The court had passed a

decree by consent. Since the plan was not exhibited, difficulties arose for execution

of  the  partition  decree.  Therefore,  the  court  below  has  rightly  allowed  the

application. The High Court on certain assumptions has set aside the said order.

Learned senior  counsel  appearing for  the respondents  submits  that  three sketch

maps have been produced at different stages in the suit.  Therefore, the High Court

has  rightly  directed  the  parties  to  file  a  joint  petition indicating their  intention

regarding allotment of their property as per their shares by producing a sketch duly

drawn  by  competent  person.   This  order  of  the  High  Court  does  not  call  for

interference.  

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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 border.  The

application filed by the plaintiff producing the aforesaid map reads as under:-  

“Most Respectfully Sheweth:

1.     That the plaintiff, as per direction of the Court is submitting a settlement Plan alongwith copy in Court this day marking annexure ‘A’ to the petition and 2/5th share with red border with a statement.

In the circumstances, it is prayed that on the basis of the said settlement plan, partition of the suit property may be made by the Learned Court for ends of justice.

And for this, your petitioner as in duty bound shall ever pray.

Dated: 06.02.2001 Sd/-

Plaintiff”  

6. 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

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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.   In the circumstances, the trial court has rightly made the plan a part

of the decree for effecting partition.  We are of the view that the High Court was

not justified in setting aside the said order.   

7. Hence, this appeal is allowed.  The order of the High Court impugned herein

is set aside and the order of the trial court dated 06.09.2006 is restored.   There will

be no order as to costs.      

   ……………………………J.

  (N.V. RAMANA)

   ……………………………J.

New Delhi;     (S. ABDUL NAZEER) April 19, 2018.