Tripura High Court
Shri Raviul Hossain vs Smt Basana Khatun Alias Basana Begam on 4 April, 2025
Page 1 of 7
HIGH COURT OF TRIPURA
AGARTALA
RSA No.02 of 2025
Shri Raviul Hossain, aged about 65 years.
S/o:- Lt. Abdul Gafur
Boxanagar, (Mullah Mura), P.S. Kalamchoura,
District: Sepahijala.
...............Appellant(s).
Versus
1. Smt Basana Khatun alias Basana Begam
W/o:- Khaliur Rahman, D/o:- Late Abdul Gofur
Vill. & PO. Kamalnagar, P.S. Sonamura,
District Sepahijala (previously under West Tripura).
2. Shri Jamir Hossain
S/o:- Lt. Abdul Gofur
3. Smt. Khuseda Begam
D/o:- Lt. Abdul Gofur
Both are resident of Boxanagar (Mullah para), P.S. Kalamchoura,
District Sepahijala (Previously under West Tripura).
4. Smt. Ramuja Khatun
D/o:- Lt. Abdul Gofur
W/o:- Shri Ful Miah
Resident of Boxanagar (Mollapara),
P.S. Kalamchoura, District Sepahijala (Previously under West
Tripura).
5. Smt. Hasena Khatun
D/o. Late Abdul Gofur
W/o. Shri Jalil Miah
Resident of Narayanpur, Kandarpar,
PO. Salda-Nadi, PS. Kasba, District
Brahmanbaria, Bangladesh.
6. Md. Sadek Miah
7. Smt. Papia Akhtar
Both son and daughter of Late Rasana Khatun, W/o. Tajul Islam
respectively, both resident of Vill. Kadamtali, P.S. Bishalgarh,
District Sepahijala, (Previously West Tripura).
............Respondent(s).
For Appellant(s) : Mr. Ashutosh De, Advocate.
: Mr. Robel Hossain, Advocate.
For Respondent(s) : None.
Date of Hearing
& Date of Judgment : 04.04.2025.
Whether fit for reporting : NO
_B_E_ F_O_R_E_
HON'BLE MR. JUSTICE S. DATTA PURKAYASTHA
JUDGMENT & ORDER(ORAL)
Heard Mr. Ashutosh De, learned counsel appearing for
the appellant.
[2] The appeal has been filed in challenging the judgment
dated 18.11.2024 passed by Ld. District Judge, Sepahijala District,
Sonamura in Title Appeal No.05 of 2019 whereby appeal was
dismissed. The background fact in gist is that the respondent no.1
as plaintiff filed a Title Suit (Partition) 83 of 2009 against the
present appellant and others praying for partition of the suit land.
The claim of the parties are that one Abdul Gafur, the predecessor
of the parties was the owner of the suit land and on his death the
entire land devolves upon the parties and Khatian bearing
No.990/1 of Mouja Boxanagar was mutated in their names
reflecting their respective shares therein. Said Abdul Gafur at the
time of his death left his two wives namely Sufiya Khatun and
Shyamala Khatoon and before institution of this suit said Sufiya
Khatun expired and during pendency of this suit Shyamala
Khatoon expired. The present appellant is one son of said Sufiya
Khatun. The Court of Ld. Civil Judge (Senior Division), West
Tripura: Agartala Court no.1 by judgment dated 19.09.2015
decreed the suit in preliminary form in the following terms:
" /ORDER/
In the result the suit stands decreed partly on
contest without cost. The parties to the suit are entitled
to their respective shares in the land measuring 3.11
acres recorded in Khatian No.2068 jer 2070
corresponding new Khatian No.990/1 of Mouja & Teshil-
Boxonagar.
The defendant No.6 being the wife of Abdul
Gafur is entitled to 1/8th share.
The Plaintiff, Defendant Nos.3,4,5 and Rasana
Khatun being the daughters of Abdul Gafur are entitled
to 1/9th share each. The share of Rasana Khatun be
allotted to her children i.e., the defendant Nos.7 and 8.
The defendant Nos.1 and 2 being the son of
Abdul Gafur are also entitled to 2/9th share each.
Shares be allotted to the Plaintiff and
defendant Nos.1 to 5,7 and 8 after deducting the share
of defendant No.6.
Parties to the suit to effect partition of the
aforesaid land by metes and bounds according to their
respective shares as declared here-in-above within a
period of two months. Failing which each party to the
suit shall be at liberty to have a Final Decree in
accordance with law.
Prepare Preliminary Decree.
This suit stands disposed of accordingly.
Enter the result."
[3] Parties thereafter could not settle the dispute amicably
and ultimately petition for final decree was filed by the plaintiff.
Survey Commissioner was appointed and he submitted report.
None of the parties filed any written objection against the said
report and ultimately Ld. Trial Court accepted the said report and
passed the final decree.
[4] Now challenging the said final decree above said Title
Appeal No.5 of 2019 was filed by the appellant in the Court of Ld.
District Judge, Sepahijala District, Sonamura. The main challenge
of the appellant in the said appeal was that when his mother
Sufiya Khatun expired, the share of Sufiya Khatun ought to have
been distributed amongst the appellant as one son and Jamir
Hossain(defendant no.2) and daughter Khuseda Begam (defendant
no.3), but her share was not distributed in this manner in the
preliminary decree. Ld. District Judge dismissed the appeal mainly
on the said ground that when preliminary decree was not
challenged by the defendant-appellant, he was debarred from
challenging the correctness of said decree on that ground in an
appeal filed challenging the final decree. Against said dismissal of
the appeal, the present appeal has been filed.
[5] Mr. De, learned counsel strenuously argues that it is the
genuine cause of the appellant that the share of his mother was
not distributed exclusively to the legal heirs of his mother rather
same has been distributed to all the parties to the suit and which
is illegal and erroneous, but despite the same, Ld. First Appellate
Court missed to take that aspect into consideration and illegally
dismissed the appeal. To support such contention Mr. De, learned
counsel also relies on a decision of Patna High Court rendered in
Bhola Sahu alias Bhola Sah vs. Chandu Sahu (Second
Appeal No.287 of 2017 decided on 12.08.2024) wherein in the
relevant paragraph no.24 it was observed that the appellant of
said title appeal did not challenge the correctness of the
preliminary decree passed in partition suit and, therefore, any
aggrieved party, who did not file any appeal against the
preliminary decree with regard to right, title and interest or shares
can challenge final decree in appeal.
[6] Mr. De, learned counsel also relies on another decision
of Calcutta High Court in case of Bejoy Krishna Sadhukhan vs.
Gangadhar Sadhukhan & Ors., AIR 1988 CaL 430 wherein, in
the judgment of the Trial Court there was no mention of share of
respondent no.1 & 2 of that appeal in the preliminary decree.
However, the appeal was filed challenging the final decree in the
High Court. Finally, while deciding the appeal, the Commissioner's
report submitted in that suit was rejected by the High Court and
liberty was given to the plaintiff appellant to apply in the Trial
Court for appointment of a Commissioner for effecting partition of
the suit-property in accordance with the terms of preliminary
decree. However, there is nothing in the said decision that in an
appeal challenging the final decree the terms of preliminary decree
was modified or altered.
[7] The Court has given due consideration to the
submission of learned counsel of the appellant and also have
meticulously gone through the record. The basic grievance of the
appellant as indicated above is the erroneous finding of Ld. Trial
Court in the preliminary decree based on which the final decree
was passed. However, admittedly the appellant did not challenge
this preliminary decree by filing any appeal and even he did not
file any objection against the Survey Commissioner's report. It is
only after the final decree was passed based on the Survey
Commissioner's report, the appellant approached Ld. First
Appellate Court for setting aside the final decree. Section 97 of
CPC clearly bars that where any party aggrieved by a preliminary
decree passed after the commencement of this Code does not
appeal from such decree, he shall be precluded from disputing its
correctness in any appeal which may be preferred from the final
decree.
[8] In view of above said provision, Hon'ble Apex Court
in Chittoori Subbanna Vs. Kudappa Subbanna & Ors, 1964
SCC Online SC 322 also similarly observed that the appellant in
the appeal was precluded from making any challenge to a direction
in the preliminary decree as he filed the appeal challenging the
final decree.
[9] In view of above, the appellant cannot be permitted
now to challenge the correctness of the preliminary decree at this
stage in this forum. Another plea has been raised in the memo of
appeal that while preparing final decree the higher potentiality of
front portion of the suit land and comparatively less potentiality of
rear portion of the suit land was also not taken into consideration.
However such plea is also not tenable at this stage as the
appellant did not opt to file any objection against the report of
Survey Commissioner in the Trial Court and choose to remain
silent on the said report without any sort of grievance.
In view of all these reasons, this Court finds no
substantial question of law to be formulated in this appeal by
admitting the same.
Accordingly, the appeal is not admitted and thus
disposed of.
Send a copy of this Judgment and Order to the Courts
below.
Pending application(s), if any, shall also stands
disposed of.
JUDGE
SATABDI DUTTA
DUTTA +05'00'
Riki
