Tripura High Court
Anup Roy Barman vs Arup Roy Barman on 10 November, 2025
HIGH COURT OF TRIPURA
AGARTALA
RSA No.42 of 2023
1. Anup Roy Barman,
S/O Lt. Amiya Bhusan Roy Barman,
R/O- Krishnanagar, Pragati Road, Agartala,
P.O.- Agartala, P.S.-West Agartala,
District- West Tripura, Age- 55 years.
.......The Appellant(s)
VERSUS
1. Arup Roy Barman,
S/O Lt. Amiya Bhusan Roy Barman,
R/O- Krishnanagar, Pragati Road, Agartala,
P.O.- Agartala, P.S.-West Agartala,
District- West Tripura, Age- 54 years.
2. Anuradha Roy Barman (Biswas),
W/O Sri Arabinda Biswas,
D/O- Late Amiya Bhusan Roy Barman,
R/O- Circuit House, Near Rabindra Kanan, Agartala,
P.O.- Agartala, District- West Tripura, Age-52 years.
......Respondent(s)
For Appellant(s) : Mr. Purusuttam Roy Barman, Sr.
Adv,
Mr. Kawsik Nath, Adv.
For Respondent(s) : Mr. Nitai Chowdhury, Adv,
Date of Hearing : 01.11.2025
Date of delivery of
Judgment and Order : 10.11.2025
Whether fit for
Reporting : YES
HON'BLE MR. JUSTICE BISWAJIT PALIT
Judgment & Order
This Second Appeal under Section 100 of CPC is
preferred challenging the judgment and decree dated
25.09.2023 and 03.10.2023 respectively delivered by
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Learned District Judge, West Tripura, Agartala in connection
with case No.Title Appeal No.05 of 2023. By the said
judgment and decree Learned First Appellate Court has
reversed the finding of the Learned Trial Court and remanded
back the matter with certain directions.
02. Heard Learned Senior Counsel, Mr. P. Roy Barman
assisted by Learned Counsel, Mr. Kawsik Nath appearing on
behalf of the appellant-plaintiff and also heard Learned
Counsel, Mr. N. Chowdhury appearing on behalf of the
contesting respondent-defendants.
03. At the time of admission of this appeal by Order
dated 03.01.2025, the following substantial questions of law
were formulated:
"[i] Whether the decision of the learned first appellate
court was perverse by remanding the suit for fresh trial
with the observation that the description of the suit
property was faulty?
[ii] Any other substantial question of law may also be
heard during hearing of the appeal?"
04. However, at the time of hearing, Learned Senior
Counsel for the appellant-plaintiff drawn the attention of the
Court that the plaintiff filed a suit for partition of the suit
property against his brother, sister and father. In course of
trial, the father expired, so, by Order dated 23.11.2018 his
name was deleted from the Cause Title and after considering
the evidence on record, Learned Trial Court decreed the suit
in favour of the appellant-plaintiff and challenging the same,
the respondent-defendants preferred an appeal before the
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Learned First Appellate Court but the Learned First Appellate
Court reversed the finding of the Learned Trial Court and
remanded back the matter to the Learned Trial Court with
certain observations and challenging the judgment and
decree of the Learned First Appellate Court, this appeal has
been preferred. It was specifically stated by Learned Senior
Counsel for the plaintiff that in para No.11 of the plaint the
appellant stated that over the suit land a two storied building
was situated having four rooms in each floor which was
constructed by the deceased mother of the appellant-plaintiff
and the defendant No.1. The building covers total area
measuring 1200 sq.ft. approximately and in the ground floor
of the building there is an extra single room beside toilet. In
two rooms of the ground floor, the mother of the appellant
and her husband used to reside and live together and after
the death of said Bakul Rani Choudhury (Roy Barman) (since
dead), the defendant No.1 was staying in the two rooms of
the ground floor. The defendant No.3 was staying in the four
rooms of the first floor and the respondent-defendant No.3
was also using the roof of the first floor and after the death
of the Bakul Rani Choudhury the appellant-plaintiff requested
the defendant for amicable partition of the suit land but that
was denied, hence, the appellant filed the suit. Learned
Senior Counsel also submitted that in para No.17 of the
Page 4 of 16
plaint the value of the share of the plaintiff was assessed to
Rs.1,00,000/- and accordingly, Court fee was paid.
Learned Senior Counsel further submitted that the
respondent-defendant No.3 contested the suit and also
admitted the fact of the appellant-plaintiff as submitted in
the plaint. The said defendant did not dispute anything by
filing written statement regarding the building standing on
the suit land and also regarding improper valuation of the
share of the plaintiff. But the Learned First Appellate Court
remanded back the matter to the Learned Trial Court on the
ground that the suit building was not mentioned in the
schedule of the plaint which was perverse. It was also stated
that since the contesting respondent did not dispute
regarding existence of building on the suit property as
mentioned in the plaint, so, for non-mentioning of the
building in the schedule of the plaint, there was no scope on
the part of the Learned First Appellate Court to reverse the
finding. He also submitted that Learned Trial Court just
passed the preliminary decree and thereafter, survey
commissioner will be appointed and there is scope for
appointment of survey commissioner to ascertain the share
and since, the final decree is not passed in this case, so, the
judgment of the Learned First Appellate Court cannot be
sustained in the eye of law. So, Learned Senior Counsel
urged for setting aside the judgment of the Learned First
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Appellate Court confirming the judgment of the Learned Trial
Court.
05. On the other hand, Learned Counsel, Mr. N.
Chowdhury appearing on behalf of the respondent-defendant
submitted that the judgment of the Learned Trial Court
suffers from perversity as because in the schedule of the
plaint the existence of building standing over the suit land
was not mentioned. So, the decree was infructuous and in
absence of non-mentioning of suit value, the decree cannot
be acted upon. Learned Counsel further submitted that the
appellant-plaintiff has valued the suit only for an amount of
Rs.1,00,000/- which was also not true and the Learned Court
had no pecuniary jurisdiction to try the suit. So, Learned
Counsel on conclusion of his argument urged for dismissal of
this appeal upholding the judgment of the Learned First
Appellate Court.
It was further submitted by Learned Counsel, Mr.
Chowdhury that the Learned First Appellate Court at the time
of deciding the appeal relied upon the judgment of the
Hon'ble Apex Court of India reported in Shankar Sitaram Vs.
Balkrishna Sitaram, reported in AIR 1954 SC 352 and
submitted that all the properties of the joint family must be
included. So, according to Learned Counsel there was no
infirmity in the judgment of Learned First Appellate Court
and urged for dismissal of this appeal.
Page 6 of 16
06. Here in the case at hand, the appellant-plaintiff
filed one suit before the Learned Trial Court for partition of
the joint ancestral property under Section 34 of the SR Act
alleging that one Bakul Rani Choudhury (Roy Barman) i.e.
the mother of the appellant was the true owner and
possessor of the suit land measuring 5 gandas situated
within West Tripura District, Mouja- Agartala, Sheet No.9,
Tehsil- Agartala, West which was recorded in Khatian
No.1138 comprising C.S. Plot No.1335 corresponding to Old
C.S. Plot Nos.8091/35003, more particularly described in the
schedule of the plaint. The original owner, Bakul Rani Roy
Choudhury died on 08.09.2012 leaving behind her two sons,
one daughter and her husband. After the death of Bakul Rani
Choudhury (since dead) all the three children inherited the
suit land equally as her legal heirs and after the death of
their mother, the parties enquired as to whether the
deceased left any Will or not but that could not be traced
out. So, after the death of Bakul Rani Choudhury the parties
to the suit and their father were equally entitled to get 1/4th
share each on the suit land. During her lifetime, Bakul Rani
Choudhury with her son, Dr.Arup Roy Barman constructed a
two storied building on the suit land having four rooms in
each floor. The said building covers total area of land
measuring 1200 sq.ft approximately and as per amicable
settlement during the lifetime of the original owner, the
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appellant-plantiff and his parents used to stay on the ground
floor of the said two storied building, whereas, the
respondent-defendant No.3, Arup Roy Barman along with his
family members used to stay on the first floor of that
building occupying all the rooms of the first floor. After the
death of Bakul Rani Choudhury, the appellant-plaintiff had
approached all the defendants on several occasions for
amicable partition of the suit land along with the partition of
the building standing thereon. The defendant Nos.1 & 2 were
agreed to that but the defendant No.3 was not ready for
settlement of the suit land and lastly, on 01.05.2015 the
appellant-plaintiff approached the defendant No.3, Arup Roy
Barman for amicable settlement of the suit land but the
defendant No.3 refused to make partition of the suit land and
accordingly, it compelled the appellant-plaintiff to file the
suit. Before the Learned Trial Court the original defendant
Nos.1 & 2 did not appear after receipt of notice to contest
the suit but the defendant No.3, Arup Roy Barman appeared
and contested the suit by filing written statement on
04.07.2016.
It was submitted in the written statement that the
suit building was constructed in the year 1989 by his parents
and after 4 years, one extra room in the ground floor and
stair case were built and that time only two walls of two
rooms were made in the first floor of the building. The
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financial investment was made jointly by the original owner
Bakul Rani Choudhury and the defendant No.3 and after
elapsing of 5 years, when the second daughter of the
defendant No.3 became grown up, the defendant No.3
consulted with his mother and as per her advice and
suggestion, the defendant No.3 constructed two more rooms
on the first floor and also renovated the existing two other
old rooms to avoid overcrowding and that time the entire
expenditure was borne by the defendant No.3. It was further
submitted that during lifetime Bakul Rani Choudhury
expressed her willingness to distribute the building equally
between the appellant-plaintiff and the defendant No.3 in a
technical manner and as per the last desire of Bakul Rani
Choudhury the appellant-plaintiff and defendant No.3 have
been residing in the said building along with their family
members having separate electricity connection in the name
of the appellant-plaintiff and the defendant No.3 in their
existing share portion of the said two storied building. It was
also submitted that there is separate gas line connection and
water supply to their respective share portion of the building.
It was also submitted that after the death of
Bakul Rani Choudhury the appellant-plaintiff misappropriated
all the movable properties of Bakul Rani Choudhury for his
wrongful gain. Hence, the said contesting defendant prayed
for dismissal of the suit.
Page 9 of 16
07. Upon the pleadings of the parties, Learned Trial
Court framed the following issues:
"(i) Whether the suit maintainable in its present form?
(ii) Whether the suit land belong to the predecessor-in-
interested parties to the suit and if so what will be the
percentage of share of the parties to the suit over the suit
land and whether they portioned their joint property
amicably earlier.
iii) Whether the plaintiff is entitled to any relief up to
what extent?"
08. To substantiate the issues both the parties have
adduced oral/documentary evidence on record:
(A) Plaintiffs' Exhibits:-
PW-1- Sri Anup Roy Barman
(B) Plaintiffs' Witnesses:-
Ext.-1: Original Survival Certificate of Late Bakul Rani
Choudhury (Roy Barman) as a whole.
Ext.-2: Original Death Certificate of deceased Bakul Rani
Choudhury (Roy Barman).
Ext.-3: Certified copy of Khatian No.1138.
Ext.-4: Original Death Certificate of Late Amiya Bhushan
Roy Barman.
Ext.-5: Original Survival Certificate of Late Amiya Bhushan
Roy Barman.
(C) Defendant's Exhibits:-
NIL
(D) Defendant's Witnesses:-
DW-1: Sri Arup Roy Barman.
DW-2: Sri Nirmal Paul.
DW-3: Sri Litan Saha.
09. Finally, on conclusion of trial, Learned Trial Court
decreed the suit in favour of the appellant-plaintiff by
judgment dated 16.01.2023. The operative portion of the
judgment of the Learned Trial Court runs as follows:
ORDER
10. In the result, the instant suit of the plaintiff is decreed
on contest with cost with a declaration that the plaintiff
and the defendant Nos. 2 and 3 are entitled to get 1/3 rd
(one third) share each of the suit land.
11. Prepare preliminary decree accordingly and put up
before me for signature within 15(fifteen) days from
today.
12. Both the parties are directed to amicably finally
partition the suit land by meets and bounds as per share
declared within 30(thirty) days, failing which any party to
the suit may move this court to have a final decree in
accordance with law.
13. Thus instant suit stands disposed of on contest.
10. Challenging the judgment, the contesting
defendants preferred an appeal under Section 96 of CPC
before the Court of Learned District Judge, West Tripura,
Agartala delivered by Learned First Appellate Court by
judgment dated 25.09.2023 and decree dated 03.10.2023
has reversed the finding of the Learned Trial Court. The
operative portion of the judgment of the Learned First
Appellate Court runs as follows:
ORDER
In view of the aforesaid discussion and findings, the
appeal preferred by the defendant-appellant Sri Arup Roy
Barman U/S 96 of the Code of Civil Procedure, 1908 is
hereby allowed on contest.
"The impugned judgment dated 16.01.2023 and the
preliminary decree dated 20.01.2023 passed by the Ld.
Civil Judge (Jr. Division), Court No.7, Agartala, West
Tripura in T.S (P) 05 of 2015 are hereby set aside.
The case record of T.S (P) 05 of 2015 is hereby
remanded back to the Ld. Trial Court with a direction to
give an opportunity to the plaintiff Sri Anup Roy Barman to
amend his plaint once again so far as the Schedule of the
Suit Properties is concerned and to allow the parties to the
suit to lead fresh evidence after recasting the issues as per
amended Schedule of the Properties.
Ld. Civil Judge (Jr. Division), Court No.7, Agartala,
West Tripura is hereby directed to complete the entire trial
as early as possible preferably within 6 months from the
date of receipt of the case record back from this Court.
The parties to this appeal shall bear their own cost.
Prepare an appellate decree accordingly.
Send back the L.C record along with a copy of this
judgment to the Ld. Trial Court at once.
The parties to this appeal are also hereby directed
to appear before the Ld. Trial Court on 5th October, 2023.
This appeal is accordingly disposed of on contest."
11. Challenging that judgment and the consequential
decree the original appellant-plaintiff has preferred this
second appeal before this Court.
12. I have heard detailed arguments of both the sides
and gone through the records of the Learned Trial Court and
the Learned First Appellate Court and also gone through the
judgment delivered by both the Learned Trial Court and the
Learned First Appellate Court. Admittedly there is no dispute
on record regarding ownership of the suit land belonging to
the deceased mother of the parties under dispute. Also
admittedly, there is no dispute amongst the rival parties
regarding existence of one double storied building over the
suit property. The appellant-plaintiff in his plaint in para
No.11 narrated everything in this regard and the contesting
respondent-defendants also in the written statement in para
No.4 admitted the said fact. Rather he stated that he
has/had good relation with the appellant-plaintiff.
I have also seen the evidence on record of the
parties. May be due to some emotion/sentiment, the dispute
cropped up amongst the rival parties for which the appellant-
plaintiff filed the suit. However, Learned Trial Court granted
preliminary decree and gave an option to the parties for
settlement of the dispute by metes and bounds. In case of
difference amongst the rival parties, there is scope for
appointment of survey commissioner before passing of final
decree. Since the existing of double storied building is not
mentioned in the schedule of the plaint for that Learned First
Appellate Court remanded back the matter to the Learned
Trial Court for denovo trial with a copy for amendment of
plaint which in my considered view was not proper.
Here in the case at hand there is no argument
from the side of the respondent that the provision of Order
VII Rule 3 has not been complied with by the appellant-
plaintiff. As already stated, in the plaint the appellant-
plaintiff mentioned about the existence of building which has
been admitted by the respondent-defendant in his pleading.
So, as submitted by the respondent-defendant that for non-
mentioning of building in the schedule of the plaint, there is
no scope to believe that the decree of the Learned Trial
Court has become infructuous and regarding lesser valuation
of the suit property as submitted by Learned Counsel for the
respondents, it appears that no such plea was taken in either
of the Courts by the respondent-defendant, so, on this plea
there is also no scope to dismiss the contention of the
appellant-plaintiff, since, no specific issue in this regard was
framed before the Learned Trial Court and at this belated
stage the same plea cannot be accepted.
13. Hon'ble the Supreme Court of India in a
judgment in Pratibha Singh & Anr. vs. Shanti Devi
Prasad & Anr. reported in (2003) 2 SCC 330, wherein in
para No.17, observed as under:
"17. When the suit as to immovable property has
been decreed and the property is not definitely
identified, the defect in the court record caused by
overlooking of provisions contained in Order 7 Rule
3 and Order 20 Rule 3 CPC is capable of being cured.
After all a successful plaintiff should not be deprived
of the fruits of decree. Resort can be had to Section
152 or Section 47 CPC depending on the facts and
circumstances of each case -- which of the two
provisions would be more appropriate, just and
convenient to invoke. Being an inadvertent error,
not affecting the merits of the case, it may be
corrected under Section 152 CPC by the court which
passed the decree by supplying the omission.
Alternatively, the exact description of decretal
property may be ascertained by the executing court
as a question relating to execution, discharge or
satisfaction of decree within the meaning of Section
47 CPC. A decree of a competent court should not,
as far as practicable, be allowed to be defeated on
account of an accidental slip or omission. In the
facts and circumstances of the present case, we
think it would be more appropriate to invoke Section
47 CPC."
From the aforesaid observation of the Hon'ble
Supreme Court of India on the ground of curable defects,
there is no scope to set aside the decree.
14. Similarly, Hon'ble Gauhati High Court in a
judgment in Monoranjan Dutta vs. Narayan Dhar
reported in (2006) SCC OnLine Gau 221, wherein in para
No.14, Gauhati High Court observed as under:
"14. A reading of Order VII, Rule 3 (as amended by
High Court), it is clear that where the subject matter
of the suit is immovable property, although, it is
provided that the plaint shall contain a description
of the, property. The basic requirement of the rule is
that the plaint shall contain the description of the
suit property, which is sufficient to identify it by
giving the description and in that event, it may not
be necessary in all cases for providing a boundary or
numbers in a record of settlement or survey, which
is left to the option of the party. The said
amendment provides that in case any area is
mentioned, such description shall further state the
area according to the notation used in the record of
settlement or survey with or without, at the option
of the party. Thus, Order VII, Rule 3 as amended by
the High Court the option is left with the party
whether such description is to be provided or not.
The rule also does not provide the consequence of
such omission and in terms of the decision in
Pratibha Singh (supra) the decree, even if it lacks
description of the decretal property, the said defect
can be cured at the executing stage by filing
necessary application. Thus, it is abundantly clear
that for failure on the part of omission to give a
description of the suit property by giving boundaries
etc. in the plaint is not fatal that can be cured at a
later stage. Thus providing those descriptions are
only optional to the plaintiff and not obligatory
one."
From the said observation, Hon'ble the Gauhati
High Court it appears that in the case at hand for failure to
mention the existence of building in the schedule of the
plaint, the decree passed by the Learned Trial Court cannot
be doubted since it was the admission of the parties that
over the suit land there is existence of one two storied
building more so, the decree passed by the Learned Trial
Court was a preliminary decree.
15. So, it appears that Learned First Appellate Court
committed error in remanding back the matter to the
Learned Trial Court on the ground that in the schedule of the
plaint, the description of the building standing on the suit
land was not mentioned with liberty to the appellant-plaintiff
to amend the plaint but in this regard nothing was submitted
by the appellant-plaintiff before this Court at the time of
hearing. However, regarding possession/partition of double
storied building standing on the suit land, this is scope to the
parties to settle the same before preparation of final decree,
if necessary, after engaging survey commissioner also, if so
requires. But for want of non-mentioning of double storied
building in the schedule of the plaint, there is no scope to
believe that the judgment and decree of the Learned Trial
Court was infructuous.
16. So, after hearing both the sides it appears that
the judgment of the Learned First Appellate Court suffers
from infirmity as such the same needs to be interfered with
and the substantial questions of law stands in favour of the
appellant of this case.
17. In the result, the appeal filed by the appellant is
hereby allowed on contest with costs. The judgment and
decree dated 25.09.2023 and 03.10.2023 respectively
delivered by Learned District Judge, West Tripura, Agartala
in connection with case No.Title Appeal No.05 of 2023 is
thus, hereby dismissed and is set aside. The judgment of
the Learned Trial Court passed in connection with case
No.T.S.(P) No.05 of 2015 dated 16.01.2023 and
consequential decree dated 20.01.2023 stands affirmed and
upheld accordingly. Learned Trial Court shall proceed for
passing final decree in the light of the judgment delivered by
this Court today after hearing the parties. The parties be
asked to appear before the Learned Trial Court on
17.11.2025.
Prepare decree accordingly.
Send down the LCRs along with copy of the
judgment for immediate compliance.
Pending application(s), if any, also stands
disposed of.
JUDGE
MOUMITA Digitally signed by
MOUMITA DATTA
DATTA Date: 2025.11.11
14:57:23 +05'30'
Purnita
