Smti Amiya Prabha Roy vs On The Death Of Late Monoranjan Roy
2022 Latest Caselaw 47 Tri

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                 HIGH COURT OF TRIPURA
                       AGARTALA
                     RFA NO.18 OF 2019
1. Smti Amiya Prabha Roy
W/O Late Satya Ranjan Roy,
Daughter-in-law of Late Srish Chandra Roy.
2. Sri Shyamlal Roy,
S/O Late Satya Ranjan Roy,
Grandson of Late Srish Chandra Roy.
Both are residents of 20 Hariganga Basak Road,
P.O. Agartala-799001, P.S. West Agartala, District West Tripura.
                                   ........... Defendant-Appellant(s)
                 Versus
On the death of Late Monoranjan Roy, his legal heirs and
representatives:-
1(a) Sri Gobinda Ballab Roy
S/O Late Monoranjan Roy, Resident of Biswanath Apartment,
(First Floor), 1074, Phakir Chand lane, Purba Sinthi Road,
Kolkata-30.
1(b) Sri Partha Roy,
S/O Late Monoranjan Roy,
1(c) Sri Dhiman Roy
S/O Late Monoranjan Roy,
All are residents of Gangail Road, Netaji Chowmuhani, P.O.
Agartala, PIN-799001, P.S. West Agartala, District West Tripura.
1(d) Smti. Gouri Rani Roy,
W/O Late Parimal Saha,
D/O Late Monoranjan Roy,
Resident of B.C. 233, Samar Pally, Kestapara, Kolkata, West
Bengal, Pin-700 102.
                                ........... Plaintiff-respondent(s)

2. Sri Priya Ranjan Roy

3. On the death of Nityananda Roy, his legal heirs and representatives:-

3(a) Sri Tarun Roy 3(b) Sri Jayanta Roy 3(c) Sri Sushanta Roy

4. Sri Pran Krishna Roy All are sons of Late Srish Chandra Roy, All are residents of 20 Hariganga Basak Road (Khoshbagan), P.O. Agartala, PIN- 799001, P.S. West Agartala, District- West Tripura.

5. Sri Gouranga Chandra Roy

6. Sri Bijoy Krishna Roy Both are sons of Late Srish Chandra Roy, Both are residents of 20 Hariganga Basak Road, P.O. Agartala, Pin-799001, P.S. West Agartala, District- West Tripura.

7. Smti Mira Roy Choudhury W/O Sri Pramath Mohan Roy Choudhury, D/O. Late Srish Chandra Roy, Resident of 18/3/10 Kumud Ghoshal Road, Ariyadasa, Dakshineswar, Kolkata-700057, North 24 Parganas, West Bengal.

8. Sri Mrinal Kanti Roy Son of Late Satya Ranjan Roy, grandson of Late Srish Chandra Roy, Resident of 20 Hariganga Basak Road, P.O. Agartala, PIN- 799001, P.S. West Agartala, District West Tripura.

........... Defendant-respondent(s)

BEFORE HON'BLE MR. JUSTICE ARINDAM LODH For appellant(s) : Mr. P.K. Dhar, Sr. Advocate Ms. S. Nag, Advocate For Respondent(s) : Mr. H. Laskar, Advocate Date of hearing and delivery of judgment & order : 13.01.2022 Whether fit for reporting : No

JUDGMENT & ORDER Heard Mr. P.K. Dhar, learned senior counsel,

assisted by Ms. S. Nag, learned counsel appearing for the

appellants and Mr. H. Laskar, learned counsel appearing for the

respondents.

2. This is an appeal under Section 97 read with Section

96 of the Code of Civil Procedure, 1908 against the final decree

and order dated 28.03.2019, passed by learned Civil

Judge(Senior Division), Court No.2, West Tripura, Agartala in

Title Suit(Partition) No.112 of 1998.

3. The present appeal revolves around very short

campus. The respondents No.1(b), 1(c), 1(d) and 2 had

instituted a suit for partition against the defendants being the

plaintiffs. There were as many as nine defendants when the suit

was filed by late Monoranjan Roy, the predecessor of the said

plaintiff-respondents. The present appellants, i.e. Smt. Amiya

Prabha Roy and Sri Shyam Lal Roy were impleaded as

defendants No.7 and 8 in the Title Suit. All the defendants had

received notices issued upon them by the learned Court. Some

of the defendants contested the suit.

4. Issues were framed and evidences were recorded.

After conclusion of recording evidence, learned trial Court had

heard the arguments of the contesting parties. Thereafter,

judgment was passed and preliminary decree was drawn.

5. Mr. Dhar, learned senior counsel appearing on behalf

of the appellants, Amiya Prabha Roy and Shyam Lal Roy(the

original defendants No.7 and 8 respectively in the title suit), at

the very outset, has submitted that the present appellants never

appeared and contested the suit.

Mr. H. Laskar, learned counsel appearing on behalf

of the plaintiff-respondents has submitted that the defendants-

appellant No.7 and 8, i.e. the present appellants were very

much present and contested the suit.

The above submission of Mr. Laskar, learned counsel

leads me to peruse the written statement filed by the

defendants-appellant. It appears that the defendant No.7, Amiya

Prabha Roy, the appellant No.1 and defendant No.8, Shyam Lal

Roy, the appellant No.2, in this appeal, both appeared and

contested the suit by filing written statements and participated

in the further proceeding of the case.

6. The defendants-respondent No.4, 5, 6, 7 and 8,

namely Sri Pran Krishna Roy, Sri Gouranga Chandra Roy, Sri

Bijoy Krishna Roy, Smt. Mira Roy Choudhury and Sri Mrinal

Kanti Roy, had preferred appeal challenging the said

preliminary decree dated 03.07.2001. The said first appeal was

registered as RFA No.38 of 2001 before the High Court.

However, the appeal was dismissed vide judgment and order

dated 26.11.2013. It is specifically submitted by Mr. Dhar,

learned senior counsel that the present appellants did not prefer

any appeal against the preliminary decree.

7. Thereafter, the plaintiffs had filed an application for

drawing up final decree. The Court appointed Survey

Commissioner. The Survey Commissioner had submitted report

firstly on 01.03.2019, which was rejected by the Court and

directed to resurvey the decretal land. In pursuance of such

direction, the Survey Commissioner again surveyed the land and

submitted another report on 18.03.2019, which also was

rejected by the Court vide order dated 25.03.2019. While

rejecting the report of the Survey Commissioner under the order

dated 25.03.2019, the learned trial Court had directed the

Survey Commissioner to again resurvey the decretal land

physically and the learned Court had fixed the next date on

28.03.2019. The Survey Commissioner had submitted his report

on 26.03.2019. According to learned senior counsel appearing

on behalf of the appellants, there was no change in the report

dated 18.03.2019 and 26.03.2019, and as such, the said report

was to be treated as perverse. On 28.03.2019, the Court had

accepted the Survey Commissioner's report dated 26.03.2019,

and accordingly the learned Court had drawn up the final decree

vide order 28.03.2019.

8. Being aggrieved by and dissatisfied with the said

order and final decree dated 28.03.2019, the present appellants

who were the original defendant Nos.7 and 8 in the partition suit

have preferred the instant appeal before this Court.

9. Mr. Dhar, learned senior counsel has submitted that

the appellant-defendant Nos.7 and 8 were seriously prejudiced

since the learned Court did not allow any time to them to file

objection. To reinforce his submission, learned senior counsel

has submitted that the learned trial Court ought to have fixed a

date inviting objections from the defendants before drawing the

final decree. As such, the said order dated 28.03.2019 and the

final decree thereof are liable to be set aside and quashed.

10. I have given my thoughtful consideration to the

submissions of the learned senior counsel appearing on behalf of

the appellants. I have also gone through the contents of the

order dated 28.03.2019 passed by the learned trial Court in

TS(P) No.112 of 1998 which is impugned in the Memo of appeal.

It is necessary to reproduce the said order dated 28.03.2019,

for convenience, in extenso:

"Today is fixed for filing objection by parties against the report of Survey Commissioner, if any/hearing and order.

            Ld.   Advocate         Mr.     H.       Laskar     on     behalf   of
      the plaintiff is present.
            Ld.    Advocate          Mr.       D.     De      on     behalf    of
      defendants is also present.
            No    objection       filed    from      any      of    the   parties

in the suit against the report of Survey Commissioner dated 26-03-2019 nor made any verbal objection by Ld. Advocates of the plaintiffs and defendants side.

Hence, it shall be presumed that parties are satisfied with the report of Survey Commissioner dated 26-03-2019 submitted in the suit.

Perused the record.

After hearing learned advocates for the parties and on perusal of the record and report of the survey commissioner dated 26-03-2019, it appears that , Survey Commissioner namely Sri Mihir Dey went to the suit land for physical survey and demarcation of the suit land and took fixed point for measurement from North- East corner of the suit land, as agreed by the parties. From the report it again appears that Survey Commissioner took the help of helper along with him for physical survey and demarcation of the suit land and after completion of measurement, prepared field book/partition schedule of the measurement of demarcation by preparing a hand sketch map showing the number of plots of every party as entitled against their individual plots. Thereafter, obtained signatures of the parties of the suit and people present as witness during the physical survey and demarcation of the suit land in the separate sheet. Report also reflects that calculation was also made and verified and thereafter, prepared hand sketch map of the present position of the suit land by way of measurement.

The above contents of physical survey and demarcation of suit land report of the Survey Commissioner in the suit, appears to be properly done and executed as per preliminary decree and to the satisfaction of the parties and also as per direction of the court.

Hence, the report of Survey Commissioner dated 26-03-2019 along with a copy of the share of plots of each individual parties and the hand sketch map therein, is hereby allowed and

accepted in the suit and shall form as part of the final decree.

             Sheristadar       of       this           establishment      is,
      therefore,   hereby     directed      to    prepare      final   decree

accordingly and place the same before me within 15 days from today, latest by 13-04-2019.

Thus, the suit is disposed of accordingly. Make necessary entry in the relevant T.R."

11. The striking feature of the said order dated

28.03.2019 is that neither the plaintiffs nor the defendants had

made any verbal objection to the report of the Survey

Commissioner dated 26.03.2019. Even the present appellants,

i.e. the defendants No.7 and 8 did not make any prayer even

verbally to accommodate them and fix another date for filing

objection. After considering this aspect, the learned trial Court

had reasonably presumed that the parties were satisfied with

the report of the Survey Commissioner dated 26.03.2019. In

view of the aforesaid fact, I do not find any merit in the

submission of learned senior counsel appearing on behalf of the

appellants that the defendants No.7 and 8 who are the

appellants of the present appeal had not been given any

opportunity to raise their objection against the report of the

Survey Commissioner. Accordingly, this submission of learned

senior counsel is repelled.

12. Now, dealing with the submission of learned senior

counsel that the report of the Survey Commissioner dated

26.03.2019 had suffered from serious infirmity as there was no

change surfaced in the said report, if the said report is read with

the report dated 18.03.2019. Again, I cannot accept this

submission of learned senior counsel on the ground that though

the defendants were represented through their learned counsels

they did not raise any objection nor made any submission asking

for some accommodation to raise their objection. Furthermore,

from the order dated 20.03.2019 it is emanated that the learned

trial Court had gone through the reports and found the contents

of physical survey and demarcation of the suit land and report of

the Survey Commissioner are properly done and executed as per

preliminary decree and to the satisfaction of the parties and also

as per direction of the Court.

13. In view of this, I find no merit in the present appeal,

and accordingly, the same stands dismissed.

JUDGE