P L D 1965 Dacca 557 (PLP)

ASIR, J.

These two Rules arise out of one order being order No. 143, dated 9‑9‑1961 in Partition Suit No. 15 of 1957 of the third Court of the Subordinate Judge at Chittagong. It appears that in the partition suit, a compromise petition between the parties was filed on or about 22nd of July 1959. By the compromise petition, it was agreed between the parties that the eastern half of the‑Anderkilla two storeyed building should go to Defendant No. 3 who is the petitioner in Civil Revision Case No. 1474 of 1961 and the western half of the same building should go to Defendant No. 2 who is opposite‑party No. 3 in the said Revis ion Case and the southern 2/3rd part of another building in Ramjoy Mohajan Lane should go to Defendant No. 1 who is opposite‑party No. 2 in Civil Revision Case No. 1474 of 1961 and the northern 1/3rd portion of the same building should go to the plaintiff who is opposite‑party No. 1 in the aforesaid Revision Case. It was also provided that the village property should be divided equally between the plaintiff and the Defendants Nos. 1 to 3 excepting some specific property which was allotted in favour of Defendant No.

4. The real trouble arose in regard to the division of the town properties between the parties. On an application at the instance of the plaintiff and also upon an application made by Defendant No. 3, the Court wanted to effect partition of the town properties according to the terms of the Solehnamah and for that purpose a Commissioner was appointed. As usual, upon the submission of the report by the Commissioner, objections were preferred by the parties. The learned Subordinate Judge after hearing the objections, gave certain directions which need not be set out here at this stage. Being aggrieved by the order of the learned Subordinate Judge the Defendant No. 3 has obtained a Rule in Civil. Revision Case No. 1474 of 1961 and Defendant No. 1 has obtained a Rule in Civil Revision Case No. 1731 of 1961. Mr. Pal appearing for Defendant No. 3 and Mr. D. C. Bhattacharjee appearing for Defendant No. 1 who are the petitioners in both the Rules, contended at the first instance that the agree ment as per Solehnama filed on 22‑7‑1959, in regard to the town properties was more or less in the nature of a final decree and as such there was nothing left to be done in that connection and those town properties were capable of being physically divided and the specific portion were liable to be handed over to the parties con cerned. Their next contention is that even if it transpired that these two town properties were not capable of physical division and that some thing was still to be done in order to implement the terms of the Soleh decree, yet the Court or the Commissioner could not make any variation in the terms of the Solehnama while enforcing the same for the purpose of partition between the parties. Mr. S. A. Chowdhry appearing for Defendant No. 2 and Mr. B. C. Das appearing for the plaintiff, on the other hand, contend that the town properties having been found to be not capable of physical division strictly according to the letter of the terms of the decree, the Court below rightly took steps for effecting partition in the manner indicated in the Judgment. There is no dispute between the parties before us as to the necessity of effecting partition according to law so far the village properties are concerned. In regard to the first contention raised on behalf of the peti tioners, it seems to us that although the Solehnama merely speaks of western half and eastern half of the Anderkilla building and of southern 2/3rd portion and northern 1/3rd portion of the property in Ramjoy Mahajan Lane, it is silent as to the length and width and other specifications required for the purpose of guidance in the matter of an effective partition between the parties. Whatever might be the intention of the parties, it is not disputed before us that on the date of the petition of compromise (22‑7‑1959), parties were in Ajmali or joint possession of these town properties: They were not in separate possession of the. respective portions indicated in the Solehnama by metes and bounds on that date. As such, it seems to us that the principle of the mode of partition‑rather the share of the parties in regard to the town properties, has been indicated and the valuation or other adjustments and specifications that might be necessary for the purpose of effecting actual partition by metes and bounds, were yet to be done. It is conceded by the learned Advocates for the petitioners that if upon a proper construction of the terms of the Solehnama it appeared that some thing more was yet to be done in order to give separate Sahams to the respective parties, than the Solehnama though. embodied in a decree could not be looked upon as the basis of a final decree. In our view, besides the indication of share of the parties in the respective town properties, everything else seems to have been left to be done under the auspice and authority of the Court. We are, therefore, of the opinion that the decree embodying the Solehnama as its part, was in the nature of a preliminary decree and it required to be made final in due course. Mr. Pal and Mr. Bhattachrajee have argued that even though it were regarded as a preliminary decree, the terms of the Solehnama could not be varied either by the Court or by the Commissioner. The learned Advocates appearing for the opposite‑parties do not contend against this proposition but it is submitted that in order to give effect to the terms of the Solehnama if appeared to be necessary in the interest of parties and for ends of justice to make minor alterations by way of adjustments, that should be deemed permissible in law. We are also inclined to think that keeping the substance of the terms of the Solehnama in tact and without violating the broad intention of the parties as can be gathered from the terms of the Solehnama, if it appears to be necessary, the Court has got powers to make minor alterations by way of adjustment without sacrificing the spirit underlying the Solehnama. It is not unusual for parties to put in a petition of compromise embodying certain terms which might indicate the principle upon which they agreed but that by itself may not be sufficient for the purpose of giving a specific relief by way of partition by metes and bounds. It seems to be the duty before us in such cases to give effect to the intention of the parties as nearly as may be by physical division of the properties in question, if necessary, by way of adjustments and minor alterations. It has been contended on behalf of the petitioners that not only material alterations in the terms of the Solehnama had been effected but also the substance thereof has been impaired and modified. These detailed matters require further investigation. The parties are at liberty, however, to canvass their grievances in this behalf before the Court and if necessary in appeal from the final decree in due course. It does not appear to us that objections of this character were raised before the Court below as the material deviations from terms of the Solehnama as now urged before us. In our view, if the parties are so advised, they would be at liberty to bring to the notice of the Court, if at all there has been any material deviation or alterations of the terms of the Solehnama. At the present moment, however, we are inclined to think that the learned Subordinate Judge was in no error in the exercise of jurisdiction in so far he attempted to effect a partition by allotments of different Sahams as far as possible. As there is no error of jurisdiction, it is difficult for us to interfere with the order passed by the learned Subordinate Judge. The parties would however, be entitled to agitate and canvass before him if there is any material deviation as to the terms of the Solehnama as alleged. The learned Advocates appearing in these Rules has suggested that another opportunity should be given to the parties to come to an agreed settlement in regard to the division or parti tion of these town properties. The learned Subordinate Judge will give sufficient opportunity to the parties in that way failing which a final decree should be prepared according to law in due course after taking all necessary steps for the purpose of survey, measurement, allotment, etc. If it appears necessary, the Count will also consider the desirability of appointing a new pleader Commissioner, if so prayed for, by any of the parties concerned, and, if there is good reason for such appointment. The result, therefore, is that subject to the observations made above, these Rules are discharged with no order as to costs. Let the records be sent down to the Court below at once. SALAHUDDIN AHMAD, J.‑

I agree K. B. A. Rules discharged.