Tripura High Court
Sri Ashish Paul vs Smt. Sikha Pal And Others on 6 January, 2023
HIGH COURT OF TRIPURA
AGARTALA
RSA 41/2022
Sri Ashish Paul ----Appellant(s)
Versus
Smt. Sikha Pal and others ----Respondent(s)
For the Appellant(s) : Mr. DK Daschoudhury, Advocate
For the Respondent(s) : Mr. HK Bhowmik, Advocate
HON'BLE MR. JUSTICE ARINDAM LODH
Order
06/01/2023
Heard Mr. DK Daschouchury, learned counsel appearing for the
defendant-appellant. Also heard Mr. HK Bhowmik, learned counsel
appearing for the plaintiff-respondents.
2. This is a second appeal filed under Section 100 of the CPC.
3. Mr. DK Daschoudhury, learned counsel appearing for the appellant
has suggested the following substantial questions of law:
"(i)Whether in a suit for partition of immovable property determining the share of
the parties only in a compromise decree is a preliminary decree or a final decree?
(ii) Whether the preliminary decree determining the share of the parties only in
partition suit is capable of execution?
(iii)Whether a survey Commissioner was right in doing the partition of suit
properties in absence of one of the sharers having 50% share arbitrarily without
obtaining prior permission of the Executing Court?
(iv) Whether the findings of the learned Courts below suffer from any perversity?
(iv) Any other substantial question of law as may be formulated during hearing?"
4. Shorn of unnecessary details, the relevant facts may be stated as
under:-
In a partition suit, a compromise decree was passed in favour of both
the appellant and the respondent. It is submitted that both the appellant and
the respondent are full blooded brother and sister. On the basis of a
solenama filed by the parties to the lis, the learned court had passed the
decree. That decree was accepted by the parties to the suit. Thereafter, some
disputes cropped up between them. Learned court had appointed a Survey
Commissioner to demarcate the suit property by metes and bounds.
Accordingly, Survey Commissioner submitted its report and the learned
court accepted the report and partitioned the suit property. In that way, both
the parties were satisfied with their respective title and possession over the
suit property.
The respondent herein also have applied for mutation and on
verification and following the process of law mutation was granted in favour
of her which had fallen in her share under the decree. Thereafter, the
possession of the respondent was again disturbed and she was evicted from
the portion under her title and possession. This had compelled the
respondent to file a suit for declaration of title and confirmation of
possession.
The appellant had participated and contested the said suit by filing
written statement and also had adduced evidences. On consideration of the
evidences and materials on record, the learned trial court decreed the suit in
favour of the respondent who was the plaintiff in the original suit.
The present appellant before this court had preferred first appeal
before the learned District Judge, Gomati Judicial District. The first appeal
was decided by the learned Additional District Judge, Gomati Judicial
District. The decree was confirmed with a modification that the said decree
will not be applicable to the tenants. Against the judgment and decree passed
by the learned first appellate court as well as the trial court, the appellant/
defendant has preferred the second appeal before this court.
5. Mr. Daschoudhury, learned counsel for the appellant has submitted
that a compromise decree is a preliminary decree and not a final decree. As
such, execution proceeding on the basis of said preliminary decree was bad
in law. In favour of this submission, Mr. Daschoudhury, learned counsel has
placed reliance upon a decision of the Hon'ble Supreme court of India in
Shankar Balwant Lokhande (dead) by lrs. Vs. Chandrakant Shankar
Lokhande and another, reported in (1995) 3 SCC 413.
6. I have perused the judgment. The fact of the present case is quite
different from the facts of the case cited by Mr. Daschoudhury, learned
counsel for the appellant because of the following reasons:
(i) In the former partition suit the compromise decree became the final
decree. Both the appellant and the respondent had accepted the
compromise decree passed by the learned courts on the basis of a
solenama which was made part of the decree. Both the parties accepted
the compromise decree and the suit property was partitioned by metes
and bounds. The matter was closed there. The appellant never agitated
his grievance against the compromise decree on the basis of which
partition was carried out by metes and bounds.
(ii) The appellant after accepting the compromise decree and
demarcation of the suit property again started disturbing the peaceful
possession of the respondent compelling her to institute a suit for
declaration of right, title and interest and for perpetual injunction and
also eviction of the tenants from the suit property.
iii) The appellant has not agitated the plea that whether the partition was
legally carried out on the basis of the compromise decree. The appellant
has not agitated this plea neither before the learned trial court nor before
the learned first appellate court.
7. In the subsequent suit i.e. the present suit, the learned trial court
decreed in favour of the plaintiff-respondent herein. Being aggrieved, the
appellant had preferred first appeal, as stated earlier. The said first appeal
was dismissed by the learned first appellate court with the modification that
the decree passed by the learned trial court would not be applicable to the
tenants. The appellant has not been affected by such modification. The
principal question relates to the suit property.
8. The substantial question of law raised by the appellant in the present
second appeal is that whether the compromise decree passed in the earlier
round of litigation under which the partition was carried out by the present
appellant and the respondent could be accepted for the purpose of partition
of the suit land.
9. Both the courts below held that the plaintiff-respondent was illegally
interfered with her peaceful possession over the suit property on
consideration of the documents and materials and evidences on record,
which also are not disputed by the appellant.
10. It is clear from the above enumerated facts that the appellant has not
challenged the decree passed in the earlier round of litigation. As such, he is
estopped to take the plea as to whether the compromise decree passed in the
earlier decree is a final decree or a preliminary decree.
11. In the light of above discussion, I find no substantial question of law.
As such, the present second appeal does not deserve to be admitted, and
accordingly, it is dismissed at the stage of admission itself.
JUDGE
Saikat
