Tripura High Court
Smt. Sanghamitra Saha And Others vs Sri Sanjoy Saha And Others on 29 August, 2024
Page 1 of 3
HIGH COURT OF TRIPURA
AGARTALA
CRP No.80 of 2024
along with
CRP No.81 of 2024
Smt. Sanghamitra Saha and others
......... Petitioner(s).
Versus
Sri Sanjoy Saha and others
....... Respondent(s).
For Petitioner (s) : Mr. Pradip Chakraborty, Advocate,
Mr. S. Debnath, Advocate.
For Respondent(s) : None.
HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
Order
29/08//2024
CRP No.81/2024 is also being heard along with the instant CRP
No.80/2024 as they both arise out of the orders dated 02.07.2024 passed by the
learned Civil Judge (Jr. Division), Court No.1, Agartala, West Tripura in Civil
Misc. No.15/2024 and Civil Misc. No.01/2024 which arise out of T.S.(P)
No.98/2004. The judgment was rendered in the Title Suit (P) No.98/2004 on
12.05.2015, and the preliminary decree was prepared on 14.05.2015. The
learned Civil Judge (Jr. Division), Court No.1, Agartala, West Tripura has on
an application filed under Order VI Rule 17 of C.P.C. read with Section 152
and 151 of C.P.C. allowed amendment of the decree in the schedule of the
plaint i.e. schedule 'B' land as it does not change the character of the suit but
merely adds the recent plot number of the suit land. Similar is the order in CRP
No. 81/2024 dated 02.07.2024 passed by the learned Civil Judge (Jr. Division),
Court No.1, Agartala, West Tripura in Civil Misc. No.15/2024 arising out of
T.S. (P) No.98 of 2004 on the application of the plaintiff strongly opposed by
Page 2 of 3
the defendant 1(a) to 1(d) and 2 who are the petitioners herein. The plaintiffs
instituted the suit for right and interest over schedule 'A' & 'B' suit land and
for apportionment of their shares by way of partition. The learned trial Court
framed the following issues:
(i) Whether the suit is maintainable?
(ii) Whether the plaintiffs have right and interest over the schedule A & B suit
land and entitled to get 1/9th share each of the said property by way of
partition?
(iii) Whether the plaintiffs is entitled to decree as prayed for in this suit?
(iv) Whether the parties are entitled to any other relief or reliefs in this suit?
Additional issue
(v) Whether the suit is bad due to abatement on the expiry of the period of
limitation for substitution of the added defendants?
The learned trial Court in answer to issue No.III held that since
schedule 'B' land is a pond, the same if partitioned would radically change the
intrinsic nature and character of the property making it unusable as pond.
Therefore, relief of partition of schedule 'B' land could not be granted to the
plaintiffs. The findings of the learned trial Court in the operative part of the
judgment is as under:
6. FINDINGS
From my decision on the above issues I find that the plaintiff
Nos. 2, 3, 4, 5 and 6 are entitled to a decree of partition of the suit 'A'
schedule land only having 1/9th share each. The defendant No. 1(a) is
also entitled to 4/9th share in the suit land.
ORDER
In the result, the suit of the plaintiffs is decreed preliminary in
part on contest against the defendant Nos. 1(a), 1(b), I(c) and 1(d) and
ex-parte against the defendant No.2.
Order as to costs is not passed considering the fact that the suit
is one for partition.
It is hereby declared that the plaintiff Nos. 2, 3, 4, 5 and 6 are
entitled to 1/9th (one-nineth) share each in the 'A' schedule suit land.
The defendant No. 1(a) alone is entitled to 4/9th (four-nineth) in the
schedule 'A' suit land
The plaintiff Nos. 1 and 7, and the defendant Nos. 1(b), 1(c),
1(d) and the defendant No.2 are not entitled to any share in the
schedule 'A' property of the suit
Accordingly, the parties are directed to amicably partition the
schedule 'A' suit land only according to the share declared above by
meets and bounds within 30 (thirty) days from today failing which the
parties are at liberty to approach this Court for preparation of final
decree in terms of this preliminary decree.
Prepare a preliminary decree accordingly and put up before me
for signature within 15(fifteen) days from today.
Given under my hand and seal on this the 12th day of May,
2015 at Agartala."
The preliminary decree prepared on 14.05.2015 is also to the
same effect. Learned counsel for the petitioner submits that there was no
occasion for the plaintiff to seek incorporation of schedule 'B' land in the
preparation of the final decree as prayed for by the plaintiffs through their
application vide Annexure-2. A written objection was also filed by the
defendants vide Annexure-6, taking the plea that such an amendment with
regard to schedule 'B' land which was excluded from the decree could not be
allowed. Moreover, in the plaint schedule 'B' land there was no Khatian
number, no plot number and no classification of schedule 'B' land and as such,
such amendment should have been rejected with exemplary cost. Learned
counsel for the petitioner submits that learned trial Court has completely
misdirected itself in allowing such an amendment by resorting to section 151
and 152 of the CPC and directing the plaintiff to file a fresh plaint incorporating
the changes and supply copy thereof to the defendants.
Issue notice upon plaintiff-respondents to be served through
learned counsel representing them in Civil Misc. No.15/2024 and Civil Misc.
No.01/2024 arising out of T.S. (P) No.98/2004 and also through ordinary
process for which requisites be filed by 3rd September, 2024.
Notice is made returnable on 27.09.2024.
In the meantime, the operation of impugned order dated
02.07.2024 shall remain stayed.
(APARESH KUMAR SINGH), CJ
Munna S MUNNA SAHA Digitally signed by MUNNA SAHA
Date: 2024.09.05 17:02:28 +05'30'
