Disposed

Rai Mohan Paul v. Matilal Paul

Tripura HC17 Jul 2017CRP/5/2017

Case brief

AI extract

What is this about?

The High Court dismissed a review petition challenging a final decree that confirmed a Survey Commissioner's report referring to the wrong plot number. The Court clarified that the decree intended Plot No. 325 as per the preliminary decree and directed parties to accept the partition, reserving the right to seek legal action if the partition was not effected on Plot 325.

What did the court decide?

The petition was disposed of without interference in the impugned order. The parties were directed to consider the partition made in terms of the Survey Commissioner's report for Plot No. 325.

Rai Mohan Paul Vs Matilal Paul — Partition | Tripura HC (2017)

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THE HIGH COURT OF TRIPURA AGARTALA

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CRP 05 of 2017

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Shri Rai Mohan Paul, S/o Late Kamini Mohan Paul of Village & P.O. Srirampur, P.S. Kailashahar, District-Unakoti, Tripura.

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………… Petitioner

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Vs –

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Shri Matilal Paul, S/o Late Thakurmani Paul of Village and P.O. Srirampur, P.S. Kailashahar, District: Unakoti, Tripura.

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………..Respondent

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BEFORE

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THE HON’BLE MR. JUSTICE S. TALAPATRA

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For the Petitioner : Mr. SM Chakraborty, Sr. Advocate Ms B Chakraborty, Advocate For the respondent : Mr. H Deb, Advocate Date of hearing and delivery of order : 17.07.2017 Whether fit for reporting : No

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JUDGMENT AND ORDER (ORAL)

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Heard Mr. SM Chakraborty, learned senior counsel assisted by

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Ms B Chakraborty, learned counsel for the petitioner as well as Mr. H Deb, learned counsel for the respondent.

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2. According to the petitioner, the Survey Commissioner partitioned the joint property [the land] which has no relation to the preliminary decree. For this purpose, Mr. Chakraborty, learned senior counsel has taken this Court to the Survey Commissioner’s report dated 26.08.2013 which was filed in TS 22(P) of 2008 for purpose of drawing up the final decree.

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CRP 05 of 2017

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Page 1 of 4

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3. True it is that the Survey Commissioner has stated in the report

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as under:

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“According to the Order of the Ld. Court, the Eastern side of R.S. Plot No. 317/P given to the Plaintiff Shri Mati Lal Paul.

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a to b = 65’-0” Northern side) b to c = 90’-0” Western side) c to d = 66’ -0” Southern side )13.5 AC a to d = 84’ -0” Eastern side) On the western side, Sri Rai Mohan Paul of R.S. Plot No. 317/P as given:

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c to f = 65’ -0” Northern boundary) f to g = 90’ -0” Western boundary) g to h = 65’ -0” Southern boundary) 13.5 AC h to e = 90’ -0” Eastern boundary)”

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It has been also recorded that after measurement in field book it was shown in red ink.

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4. Mr. Chakraborty, learned senior counsel has strenuously argued that though in the body of the report, the Survey Commissioner has stated that he had measured R.S. Plot No. 325 appertaining to Khatian No. 319 of Mouja Srirampur measuring 0.27 acre but finally he has reflected a different plot No. i.e. R.S. Plot No.317/P in the concluding part of the report. Mr. Chakraborty has fairly submitted that in the preliminary decree, however, the correct plot number, i.e. R.S. 325 has been recorded. Further, Mr. Chakraborty has submitted that there is no direction in the preliminary decree to cause survey of the land but that has been recorded wrongly by the Survey Commissioner. Such order has been passed in the proceeding for drawing up the final decree.

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5. Mr. H Deb, learned counsel for the respondent has submitted that against the Survey Commissioner’s report the defendant-petitioner did not raise any objection in the trial court. As such they shall not be permitted to raise such objection here.

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CRP 05 of 2017

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Page 2 of 4

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6. Be that as it may, both the learned counsel appearing for the parties have submitted that the relevant plot is R.S. Plot No.325 and the Survey Commissioner had took measurement of the said plot for purpose of partition of the land in terms of the share as declared in the preliminary decree. There is no dispute regarding the division as made by the Survey Commissioner and as such to avoid any confusion we may read what has been recorded in the preliminary decree:

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“8. In the result the suit is decreed preliminarily with cost. 50% share of plaintiff in the suit property is hereby declared as absolute and if the parties failed to make partition of suit property by distinguishing their equal share by metes and bounds up to the satisfaction of both the sides within 3(three) months of this Order, then plaintiff is entitled to know door of this court for final decree.”

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In the decree, the plot number is admittedly recorded as Hal dag

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No. 325 pertaining to Khatian No. 319 of Mouja Srirampur.

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7. In the final decree, the court has recorded as under:

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“1. Upon reading the preliminary decree passed in the suit on the 20th day of September, 2011 and the application of plaintiff dated 17.01.2012 for a final decree and the Survey Commissioner’s Report dated 26.08.2013 along with its field book dated 20.08.2013 it appears that the Survey Commissioner has caused partition of the decreetal land by allotting the share of each party on the basis of terms of the preliminary decree and the share of each party is also been shown specifically in his field book dated 20.08.2013.

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2. This court doth order that the report dated 26.08.2013 and its field book dated 20.08.2013 prepared and signed by Survey Commissioner after causing partition in pursuance of the order contained in the preliminary decree dated 20.09.2011 following its judgment and order 19.09.2011 do stand confirmed.

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3. And it is finally decreed that the property/properties out of schedule/schedules annexed hereunto shown in the Survey Commissioner’s report dated 26.08.2013 and its field book dated 20.08.2013 is allotted in favour of the parties.

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The Survey Commissioner’s report dated 26.08.2013 and its filed book dated 20.08.2013 do form part of Final decree.”

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It also the admitted position that in the final decree also Hal Dag No. 325 has been shown as the relevant plot.

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8. Therefore, the partition as made by the Survey Commissioner

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shall be read as the partition of the R.S. Plot No.325 pertaining to Khatian

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CRP 05 of 2017

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Page 3 of 4

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No.319 of Mouja Srirampur and the plaintiff and the defendant shall get the respective share in terms of the partition made by the Survey Commissioner and as recorded in his field book which has been marked by red ink. The parties may collect the certified copies for purpose of getting the record of partition. Since the final decree has already allotted their respective ownership in respect of their land as demarcated by metes and bound by the Survey Commissioner, there shouldn’t be any doubt.

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9. In view of this clarification, this Court does not think that further order is required in the matter and as such, no interference in the impugned order is required. Accordingly, this petition stands disposed of. 10. It is made clear that the petitioner shall always be at liberty to take appropriate action at law if he discovers that the partition was not made in respect of Plot No.325 pertaining to Khatian No.319 of Mouja Srirampur.

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There shall be no order as to costs.

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JUDGE

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CRP 05 of 2017

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Page 4 of 4

Rai Mohan Paul v. Matilal Paul

Case brief

What is this about?

What did the court decide?

Rai Mohan Paul v. Matilal Paul

Case brief

What is this about?

What did the court decide?

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