Sri Subhash Choudhury vs Sri Chanchal Choudhury
2021 Latest Caselaw 501 Tri

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                      HIGH COURT OF TRIPURA
                          AGARTALA
                         RFA 04 of 2019
     Sri Subhash Choudhury,
     Son of late Gopal Chandra Choudhury, resident of Abhoynagar,
     (near Nazrul Smriti Vidyalaya), P.O. Abhoynagar, P.S. New Capital
     Complex, District- West Tripura
                                                           ....Appellant-Petitioner
                   VERSUS
1.   Sri Chanchal Choudhury,
     Son of late Gopal Chandra Choudhury, resident of Abhoynagar,
     (near Nazrul Smriti Vidyalaya), P.O. Abhoynagar, P.S. New Capital
     Complex, District- West Tripura
2.   Sri Tarun Kanti Choudhury,
     Son of late Gopal Chandra Choudhury, resident of Abhoynagar,
     (near Nazrul Smriti Vidyalaya), P.O. Abhoynagar, P.S. New Capital
     Complex, District- West Tripura
3.   Sri Tapan Kumar Choudhury,
     Son of late Gopal Chandra Choudhury, resident of Abhoynagar,
     (near Nazrul Smriti Vidyalaya), P.O. Abhoynagar, P.S. New Capital
     Complex, District- West Tripura
4.   Sri Debasish Choudhury @ Ranjan Choudhury,
     Son of late Gopal Chandra Choudhury, resident of Abhoynagar,
     (near Nazrul Smriti Vidyalaya), P.O. Abhoynagar, P.S. New Capital
     Complex, District- West Tripura
5.   Smt. Bina @ Bela Deb (Choudhury),
     Wife of late Himangshu Deb, daughter of late Gopal Chandra Choudhury,
     resident of Rajarbag, P.S. RK Pur, Udaipur, District- Gomati, Tripura
     Care of Sri Tapan Kumar Choudhury, S/o late Gopal Chandra Choudhury,
     at present resident of Abhoynagar, (near Nazrul Smriti Vidyalaya), P.O.
     Abhoynagar, P.S. New Capital Complex, District- West Tripura
6.   Smt. Subra Choudhury (Majumder),
     Wife of late Ratan Majumder, daughter of late Gopal Chandra Choudhury,
     resident of Kamalpur, East side of Kameswari Kalibari, P.O. Kamalpur,
     P.S. Kamalpur, Udaipur, District- Dhalai, Tripura
                                                              ... Respondents

For Appellant Petitioner (s ) : Mr. D. Bhattacharya, Sr. Advocate Mr. Samar Das, Advocate For Plaintiff-Respondent (s) : Mr. P. Chakraborty, Advocate Mr. DC Saha, Advocate Date of hearing & delivery of Judgment & Order : 12.04.2021 Whether fit for reporting : Yes / No

HON'BLE MR. JUSTICE ARINDAM LODH JUDGMENT & ORDER

1. Heard Mr. D. Bhattacharya, learned senior counsel assisted by Mr. Samar Das, learned counsel appearing for the appellant-petitioners. Also heard Mr. P. Chakraborty, learned counsel for the respondents no. 1 and 2 and Mr. DC Saha, learned counsel for the respondents no. 3 to 6.

2. The short question involves in this second appeal, as raised by Mr. D. Bhattacharya, learned senior counsel is that, whether the survey Commissioner has the right to allot the land amongst the co-sharers while executing the terms of the preliminary decree.

3. Mr. D. Bhattacharya, learned senior counsel has submitted that without writ of the court, the survey Commissioner has no right to allot the land in favour of any of the co-sharers.

4. I repel the submission of learned senior counsel for the reason that under order XXVI Rule 14 CPC, 1908, the statute obligates the survey Commissioner to allot the land in favour of the co-sharers. Sub-rule(1) of Rule 14 of Order XXVI of the CPC may be reproduced here-in-below:

"The Commissioner shall, after such inquiry as may be necessary, divide the property into as many shares as may be directed by the order under which the commission was issued, and shall allot such shares to the parties, and may, if authorized thereto by the said order, award sums to be paid for the purpose of equalizing the value of the shares".

5. In the instant case, the learned court appointing the Survey Commissioner had passed an order upon him to distribute the shares as per the preliminary decree. After survey, the Commissioner distributed the shares and made allotment of such shares upon the co-sharers and submitted report. Had there been any grievance, the appellant could have filed objection against such distribution and allotment of shares. But, he refrained

from raising his grievance. Therefore, I do not find any merit in the submission of learned counsel appearing for the appellant.

6. It is evident from the record that the appellant herein, did not raise any objection despite giving opportunity to him by the learned court to file objection against the report of the survey Commissioner. Accordingly, since there was no objection on behalf of any of the parties to the suit, the learned court accepted the report of the survey Commissioner and the report has been made as part of the final decree. Accordingly, it was disposed of.

7. For the reasons stated and discussed here-in-above, I find no merit in the instant appeal and the same stands dismissed and the judgment and order dated 13.11.2018 and decree thereafter dated 16.11.2018 passed by the learned Civil Judge (Senior Division) Court no. 1, West Tripura, Agartala is affirmed and upheld.

Send down the LCRs immediately.

JUDGE

Saikat