Bibek Chaudhuri, J.
1. A suit for partition and administration of estate being CS No.296 of 1997 filed by the predecessor-in-interest of the present appellants was decreed in preliminary form by this Court by a judgment dated 16th February, 1999. The relevant portion of the preliminary decree passed in the said suit is reproduced below:-
"I have satisfied with the submissions made by the learned Counsel on behalf of the plaintiff in respect of shares and in respect of the immovable property being the subject matter of partition. Since there is no objection with regard to share and property, I apply the principle of Order 8, Rule 5 of the Code of Civil Procedure and pass a preliminary decree in terms of prayer(s) of the plaint.
Ms. Swapna Mukherjee, an Advocate of this Court, member of the Bar Library Club, is appointed Commissioner of Partition, Commissioner of Partition be appointed in the property who will work over the property and take necessary steps for the purpose of partition by metes and bounds by way of dividing and effecting partition of the said property as per the agreement in terms of the undivided 1/5th share. The Commissioner of Partition will complete her work within a period of eight weeks from the date of communication of the order and furnish a return before this Court for the purpose of passing a final decree."
2. It is pertinent to mention here that prior to the institution of the suit, the co-sharers being the original plaintiff and the defendants of the said suit had entered into an agreement for amicable partition of the suit premises amongst themselves. Clause 3 of the agreement reads thus:-
"The parties hereto have mutually agreed that the First Party herein, for his contribution and services rendered for the safety and management of the joint properties should be allotted with more spaces in his favour in the Deed of Partition."
It is further stipulated- "The First Party shall accept in severalty and absolute as his defined and demarcated space in the said property in lieu of his undivided share in the said property, the portion of his allotment being shown in the Second Schedule hereunder written."
The Second Schedule of the agreement declares the share of said Narendra Nath Saha, predecessor-in-interest of the respondent Nos.1 to 3 in following words:-
"ALL THAT Unit No. B-3 containing an area of 239.78 sq.ft. more or less in the Ground-floor and Unit No.G-1 containing an area of 380.42 sq.ft. and the roof area of 280 sq.ft. and also Unit No.A-1 containing an area of 2873.80 sq.ft. more or less both in the First floor. All the aforesaid three units situate at the multi-storeyed building named Hiralal Commercial Complex in the said premises No.35 Acharya Prafulla Chandra Road fully described in the First Schedule hereinabove mentioned and all the three allotments have been shown in the map or plan annexed hereto."
3. Thus, the preliminary decree passed in CS No.296 of 1997 is absolutely clear that partition of the suit property would be effected as per the agreement in terms of undivided 1/5th share of the parties. In other words, 1/5th share of the parties in the suit premises was declared by this Court while passing preliminary decree and the Partition Commissioner was directed to effect partition in terms of the agreement arrived at by and between the parties sometimes in the year 1994.
4. Though the preliminary decree was passed taking CS No.297 of 1997 as an undefended case and an order was passed in accordance with the provision of Order 8 Rule 5(2) of the Code of Civil Procedure, real dispute started between the parties at the time of drawing up of final decree.
5. Series of applications were filed both by the appellants and the respondents raising several disputes as to the mode and manner of effecting partition by the Partition Commissioner appointed by the Court. The learned Advocate who was appointed Commissioner while passing the final decree was discharged and new Advocate Commissioner and Surveyor were appointed to effect partition of the suit premises by metes and bounds.
6. On the basis of the Surveyor's report, the newly appointed learned Advocate Commissioner submitted his report for effecting partition making allotment of an area measuring about 8980 sq.ft. from the vacant portion lying in the 4th floor of the suit premises in favour of appellants. The respondents 1 to 3 took out an application which was registered as G.A 1067 of 2018 praying for setting aside the final report of the Commissioner and to conduct a fresh survey by the surveyor in terms of the order dated 30th June, 2009.
7. The said application was disposed of by the learned single Judge by an order dated 18th June, 2018 with the following directions:-
"Under such circumstances, the Commissioner of Partition is directed to make valuation of excess area, if so required and divide the sale proceeds amongst the co-sharers equally after payment of the statutory dues as directed by the earlier order dated 30th January, 2009. The Commissioner of Partition shall also immediately give effect to the agreement and make allotment of the spaces to each of the groups as early as possible. The entire exercise shall be completed within eight weeks from date. The Commissioner of Partition shall appoint a valuer, if required, upon consultation with the parties and the parties shall bear the costs and expenses of the valuation corresponding to their share."
8. This order is under challenge in this appeal.
9. Mr. Kashinath De, learned advocate appearing on behalf of the appellants submits that the preliminary decree in the suit for partition and administration of estates was passed by a learned single Judge of this Court declaring 1/5th share each of the predecessor-in-interest of the appellants and respondents 1, 2 and 3 and also respondents 4, 5 and 6. While declaring the share of the parties, the learned Court declared that the partition of the suit premises would be effected as per the agreement arrived at by and between the parties some times in the year 1994. Thus, it is contended by Mr. De that in view of the preliminary decree attaining its finality there cannot be any doubt with regard to the share of the parties. The appellants being the legal heirs and representatives of the original plaintiff want 1/5th share of the building. In other words, the terms of the agreement shall be translated into action while effecting partition, subject to 1/5th share each of the cosharers in the suit premises. Mr. De has raised objection on the ground that the Partition Commissioner is going to allot more than the share in favour of the respondents 1, 2 and 3 in violation of the preliminary decree. According to Mr. De, some portions of the properties have been sold out by the respondents even before filing of the partition suit after execution of the agreement in the year 1994. Therefore, the said agreement cannot be given effect to, at this stage. It would be absolutely impracticable if the respondents are allotted 1/5th share in the suit premises over and above the portion which was allotted by the predecessor-in-interest of the said respondents in the agreement of 1994. He also submits that the agreement for division and allotment of shares do not cover all the properties owned by the parties.
10. In support of his contention Mr. De refers to a decision of this Court in the case of Sarat Chandra Chattopadhyaya vs. Ganga Charan Chakravarty reported in 43 C.W.N. 181. It was held in the aforesaid decision that a partition for convenience of possession by itself cannot stand in the way of a decree for partition in a suit so long as it is not found that it was in conformity with the shares of the respective parties. It is urged by Mr. De that the agreement by and between the co-sharers was arrived at for the sake of effecting partition taking into consideration the convenience of the parties. But such agreement cannot stand in the way of effecting and dividing the suit property as per 1/5th share of the parties as declared in the preliminary decree. On this point, he also refers to a decision of the Hon'ble Supreme Court in the case of Shub Karan Bubna alias Shub Karan Prasad Bubna vs. Sita Saran Bubna and others, (2009) 9 SCC 689. It was held by the Hon'ble Supreme Court therein that after passing of preliminary decree in a partition suit, unless there is an agreement between the parties as to the manner of division, it is the duty of Court to ensure that the matter is referred to the Collector or a Commissioner for consequential division by metes and bounds which would be subject matter of final decree. Thus, an application for final decree in partition suit is an application in a pending suit. According to Mr. De, a partition suit does not come to an end after passing of preliminary decree and the suit is held to be pending till final decree effecting partition by metes and bounds is passed.
11. Mr. De also relies upon the following decisions of the Hon'ble Supreme Court in support of his argument:-
i) Dhurandhar Prasad Singh vs. Jai Prakash University and others, (2001) 6 SCC 534.
ii) Urban Improvement Trust, Jodhpur vs. Gokul Narain (dead) By LRS. and another, (1996) 4 SCC 178.
iii) Hasham Abbas Sayyad vs. Usman Abbas Sayyad and Others, (2007) 2 SCC 355.
iv) A. Jithendernath vs. Jubilee Hills Coop. House Building Society and Another, (2006) 10 SCC 96.
v) Alagu Pharmacy and Others vs. N. Magudeswari, (2018) 8 SCC 311.
12. We have carefully considered the above mentioned decisions. Except the ratio laid down by the Supreme Court in Hasham Abbas Sayyad (supra), no other decision is applicable under the facts and circumstances of the instant case. In such other decisions the Hon'ble Supreme Court had the occasion to discuss the question with regard to executability of a decree which is a nullity for want of jurisdiction.
13. In the instant case, the preliminary decree passed by this Court cannot be said to be a nullity specially when the decree was passed by a competent Court having jurisdiction to try the suit and secondly, the decree has reached its finality long ago.
14. In Hasham Abbas Sayyad (supra), the Hon'ble Supreme Court held that a preliminary decree in a partition suit declares the rights and liabilities of the parties. The preliminary decree as such cannot be put to execution. It is the final decree which could be executable in nature. Without drawing a final decree, the Court could not have put the property in auction sale. It is true that the house property was found to be an impartable one; but a preliminary decree having been passed, the valuation thereof and final allotment of the property could have been done only in a final decree proceeding. Only when final allotments were made or a determination is made that the property should be put on auction sale, a final decree in respect thereof should have been passed.
15. Therefore, it is submitted by Mr. De that the learned single Judge erred in law in directing the Commissioner of Partition to make valuation of excess area, if so required and divide the sale proceeds amongst the co-sharers equally after payment of statutory dues as directed by the earlier order dated 30th January, 2009.
16. Mr. Soumya Ray, learned advocate for the respondents, on the other hand, draws our attention to the relevant portion of the agreement which has practically been made part of the preliminary decree, where it was agreed by and between the parties that the first party to the said agreement, i.e., the predecessor-in-interest of the respondent Nos.1 to 3, for his contribution and services rendered for the safety and management of the joint properties would be allotted with more spaces in his favour in the deed of partition. Accordingly, the predecessor-in-interest of the respondents 1 to 3 were allotted the portion described in the second schedule of the said agreement. The agreement being a part of the preliminary decree must be given effect to and final decree is to be passed on the basis of the preliminary decree. The question as to whether the said agreement for effecting partition was given effect to or not came up for consideration before this court in G.A. No.1871 of 2003 and G.A. No.1461 of 2005. By a judgment dated 7th October, 2005, the Hon'ble Kalyan Jyoti Sengupta, J. (as His Lordship then was) refused to accept the report of partition by metes and bounds submitted by the previous Advocate Commissioner on the ground that the learned Advocate Commissioner had ignored the terms of the agreement which was made part of the preliminary decree. Subsequently, in G.A. No.3935 of 2007 Hon'ble Nadira Patherya, J. (as Her Ladyship then was) by judgment dated 30th January, 2009 was pleased to hold that the division of the suit property would be made as per the agreement wherein it is specifically provided that the predecessor-in-interest of the respondents "should be allotted with more space in his favour in the deed of partition." In the said judgment, the learned Judge clearly directed the Commissioner of Partition to take steps to sell the property and divide the sale proceeds amongst the co-sharers equally if after partition some balance area is left out and the same is found to be impracticable for partition. The appellants did not challenge the said judgments dated 7th October, 2005 and 30th January, 2009 and both the judgments have reached finality. In terms of the judgment dated 30th January, 2009, the learned single Judge directed the Commissioner of Partition to make valuation of excess area, if so required and divide the sale proceeds amongst the co-sharers equally after payment of statutory dues. The learned Judge also directed the Commissioner of Partition to immediately give effect to the agreement and make allotment of the spaces to each of the co-sharers as early as possible.
17. When the agreement has become a part of the preliminary decree and specific direction was made that allotment of share is to made on the basis of the said ag
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reement, final decree is required to be drawn up in terms of the preliminary decree. 18. In the case of Shub Karan Bubna (supra), the Hon'ble Supreme Court gave preference to the agreement for partition arrived at by and between the parties while dividing the property by metes and bounds. In the absence of any such agreement, it was held, it is the duty of the Court to ensure that the matter is referred to Collector or a Commissioner for consequential division by metes and bounds which would be subject matter of final decree. Well settled is the law, that for effecting partition by metes and bounds, it is the duty of the Court to divide the property as far as practicable on the basis of existing possession of the parties or an agreement executed by and between the parties. Preliminary decree in the suit declaring the share of the parties with a direction to give effect to the said agreement was passed on the prayer of the plaintiffs/appellants at the stage of final decree, the appellants cannot raise any dispute at this distance of time as to the implementation of the said agreement for effecting partition. 19. In view of the above discussion, we do not find any merit in the instant appeal and the same is liable to be dismissed. Accordingly, the instant appeal be and the same is dismissed on contest without costs. 20. Interim order, if any, is vacated. Urgent photostat certified copy of this order, if applied for, be given to the parties as expeditiously as possible. Dipankar Datta, J. I agree.