Calcutta High Court
Haji Md. Sirajuddin vs Md. Riyazuddin on 2 August, 2025
1
OD-12
IN THE HIGH COURT AT CALCUTTA
ORIGINAL SIDE
Ordinary Original Civil Jurisdiction
GA./9/2025
In
HAJI MD. SIRAJUDDIN Vs MD. RIYAZUDDIN
Before:
The Hon’ble Justice BISWAROOP CHOWDHURY
Date: 2nd AUGUST, 2025.
Appearance
Mr. Abdul Masood, Adv.
Ms. Debanwita Pramanik, Adv.
…for the plaintiff.
The Court: This application is filed by the defendant no. 1A, 1B, 1C, 1F 1I, 1L and
1(m) with the following prayer.
a) Modify and/or clarify the order dated 19th May, 2025, passed by this
Hon’ble Court to the extent of the direction towards sharing the
remuneration of the Surveyor by both the parties, and absolve the
defendants from making any payment towards the remuneration of the
Surveyor for preparation of the scaled plan annexed as Annexure-‘D’ to the
application being IA No. GA/5/2014 (Old No: GA/376/2014), and the
remuneration of the Surveyor for preparation of the scaled plan be directed
to be borne by the plaintiff alone;.
It is the contention of the petitioner that in order dated 19th May 2025 passed
by this Court it was observed that the Learned Partition Commissioner shall consider
2
the preliminary decree as well as the Order dated 10th February 2014 and upon
preparing a scaled plan based on the draft plan being Annexure ‘D’ at pg 84 of the
application submit a report. It is further contended that the Court directed
preparation of a scaled plan on the basis of draft solely for the purpose of considering
the matter in its entirety. It is also contended that the draft plan was prepared
unilaterally without leave of this Court according to the plaintiff’s own interpretation
of the preliminary decree. It is contended that the plaintiff holds 1/4th share while
the defendants holds 3/4th share herein as such the plaintiff’s share is very small. As
remuneration is to be paid as per the respective shares of the parties in suit property
the burden substantially falls upon the defendants It is contended that the Order
dated 19th May 2025 passed by this Court be modified and surveyor’s fees be paid by
the plaintiff. It is further contended that the Order dated 19th May 2025 was passed
and there was bona fide mistake of the Learned Advocate on record of the defendant
in perusing the order. It is also contended that the Learned Advocate for the
defendants specifically raised the issue before the commissioner of partition.
Learned Advocate for the plaintiff objects the prayer of the defendant and
submit that this Order was passed upon hearing the defendants and the defendants
have participated in the meeting held by the partition commissioner, and after the
survey is being completed and when the certificate is about to be issued the
defendants have come out with this application.
Upon perusing the Order dated 19th May 2025 passed by this Court it is clear
that this Order was passed upon hearing the Learned Advocate for the plaintiff and
the Learned Advocate for the Defendants no. 1A to C, 1F, 1I, 1L and 1M. This Order
was not challenged in Appeal and thus the same has attained its finality. It is well
settled that in a partition suit the expenses of the partition commissioner the
expenses of surveyor and incidental expenses are borne by the parties as per the
share. The Defendants by making this prayer for exemption to pay the surveyor has
3
made an unusual prayer which cannot be considered. Thus, this application cannot
be sustained and the same is dismissed.
(BISWAROOP CHOWDHURY, J.)
A.Bhar (P.A.).