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Party to partition suit who`s actual plaintiff and defendant have died
25-Mar-2023 (In Property Law)
I am a plaintiff of litigated property.already got preliminary decree and got advocate commissioner appointment.the total schedule of property is 20 kathas in preliminary decree.but before the suit 4 kathas already sold jointly,, during lifetime of my father and uncle(who are the actual owner of the property and actual plaintiff and defendant) both are died during the pendency of suit. We are the substitute plaintiff.and diffendant are also substiruted. so actually the total physicaly property is 16 kathas. Wrongly I am not mention this in that suit.similarly none of the defendants arise this question during preliminary decree and commissioner appointment.is there any problem 1) to submitting advocate commissioner report?? 2) defendant can arise this issue now? Pls help
Since the preliminary decree has been drawn up so before the final decree is passed you need to show to the Advocate Commissioner that 4 kottah so was already sold during the pendent you of the case by producing the original deed or a certified copy of the deed showing such sale on the basis of which the Commissioner will make his report. The defendantsaid if they have sufficient proof that such sale is fraudulent only then can they challenge it if they state that they had no prior knowledge. But if they did know about the sale and did not state it before the drawing up of the decree, they cannot challenge the sale and must accept the division of the remaining 16 kottah which upon the submission of the commissioner's report the amount of land in the final decree will be modified in terms of the commissioner's report.
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Adv. Alakananda Das
Kolkata | 100+ Answers
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Firstly a decree based upon an incorrect schedule of property in the plaint cannot be lawfully executed and the shares defined in the decree also lacks the right distrubution of property amongst the co owners. It is sugessted to bring the facts to the knowledge of the court for proper adjudication by way of amendment which can be sought anytime provided we have to show that even after due deligence the said facts were not know to knowledge of plaintiffs and defendants. Rest all proper and perfect oponion can be provided only one has acess to your case details and papers.
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Adv. Vikram Ojha
Kolkata | 200+ Answers
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The present position should be notified to the court by filing an amendment petition. It would not be a problem the court will fix a date for hearing amendment petition and if all the parties agree the main application will be modified.
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Adv. Vivek Poddar
Kolkata | 100+ Answers
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