Shri. Sukumar Mondal v. Smti. Usha Mondal And ORS.

IN THE HIGH COURT AT CALCUTTA

CIVIL APPELLATE JURISDICTION CIRCUIT BENCH AT PORT BLAIR Present:- HON'BLE JUSTICE TIRTHANKAR GHOSH.

And HON'BLE JUSTICE CHAITALI CHATTERJEE DAS.

FMAT NO. 2 OF 2025 SHRI SUKUMAR MONDAL VS SMT. USHA MONDAL AND OTHERS For the appellant : Ms. Anjili Nag, Sr. Adv. Ms. K. Bhawani, Adv.

Mr. Adarsh Ilango, Adv.

Ms. Sohini Biswas, Adv.

For the Respondents : Mr. Arul Prasanth, Adv. Last heard on : 17.03.2026 Judgement on : 11.06.2026 Uploaded on : 11.06.2026 CHAITALI CHATTERJEE DAS, J. :-

1. This First Miscellaneous Appeal is directed against the judgement and decree passed in Title Appeal no 20 of 2022 by the Learned District Judge, A & N Islands, Port Blair in connection with an Appeal from the Final Decree passed in the Partition Suit was setting aside the Commissioner's Report over Govind Nagar property.

Fact of the case

2. A partition suit was filed before the Leaned Civil Judge (Senior Division), by the present appellant being the plaintiff against the respondent. The defendant no 1 to 7 appeared and filed their counter claim and relied upon a settlement arrived between the parties which have been given effect and they mutually agreed to divide the properties .They specifically contended that as per settlement Sarala and Basanti would get land bearing no .290/1/5. It is the further case of the appellant that an application was filed prior to filing such written statement under order 12 rule 6 of the CPC where the respondents agreed to get the land partitioned in terms of the claim of the appellant/ plaintiff .Respondent no.8 to 10 also filed similar application before the Learned Trial Court . The learned Civil Judge (Sr.

div ) heard the parties and passed a preliminary decree declaring the share of the parties . But the partition could not come out as per settlement by metes and bound and an application was filed by the appellant for appointment of partition commissioner under Order 20 Rule 18 of the code of civil procedure .Hence the Tehshildar ,Port Blair was appointed as partition commissioner by the learned Trial court to partition the properties .He issued notices to both the parties and conducted demarcation in presence of all the parties at the spot and they were shown their respective portion of land which he proposed for allocation of share and without having any objection from either side submitted his report. The respondents filed a written objection and prayed for examining the commissioner.

valuable lands to the appellant /plaintiff .Nowhere in the written objection the defendants 1 to 7 that is the present opposite parties, contended that the defendant Sarala and Basanti are in possession of land bearing survey no. 290/1/5.

3. The Tehshilder was subsequently examined for the purpose of exhibiting commissioner's report and the report was exhibited without objection and the learned court passed the final Decree in terms of the report .Challenging the same the defendants 1,4,5 & 6 preferred an appeal before the Learned District Judge at Port Blair and the First Appellate Court after hearing the parties ,set aside the report of the commissioner with regard to one of the properties and remanded back the matter to the learned Trial court for appointment of partition commissioner afresh to carry out partition in respect of the suit property situated at Govinda Nagar Village, Havelock Island. Being aggrieved thereby the appellant has filed the instant appeal. Submission on behalf of the appellant

4. The learned Senior Advocate argued that the preliminary decree was passed by the learned Trial court on 9.8.2017 on the basis of admission by the defendant under Order 12 Rule 6 of the Code of Civil Procedure, the partition commissioner was appointed on their prayer but thereafter they raised objection. The trial court passed the order considering the entire facts which has been reverted. It is further argued that the order of the learned District Judge is unsustainable as the Learned District Judge held that by filing the application under Order 12 Rule 6 of CPC by the defendants the plaintiff has admitted the case of the defendants and further the written statement was

relied upon by the Learned District Judge considered ignoring the fact that those cannot be looked into as by saying the partition may be done in terms of para 8 of the plaint as the defendants have waived their right of claiming specific possession of the suit property as they prayed for partition to be done in terms of paragraph 8 of the plaint .It was wrongly observed that the no notice was issued by the partition commissioner before carrying out the partition when admittedly the commission work was done in presence of both the parties hence question of issuance of notice by the commissioner does not arises. The learned District Judge totally ignored the written objection filed by the defendants, where in para 5 they specifically stated that the land has been demarcated in presence of all the parties .

The report of the commissioner was exhibited without any objection by the Defendant and in the said report it has been specifically mentioned that partition has been done considering the physical occupation of the parties. It is the specific contention of the Learned Counsel that only in order to drag the proceeding the appeal was filed.

5. Per Contra the Learned Advocate representing the respondents argued that the instant appeal is not maintainable in law and in fact. It is contended that in terms of the report of the partition commissioner on 20th June ,2018 the notice was issued to the parties to attend the spot on 26.3.2017 but no such notice dated 20.6.2018 was served . The partition commissioner neither issued notice dated 11.5.2018 nor issued notice dated 20.6.2018 to the respondents. He never appeared before the court for cross examination and that is apparent from the map prepared where no real signature of the partition commissioner

as well as the parties can be found. It was wrongly stated in the report that the demarcation was done in presence of the parties whereas no notice was issued to substantiate the claim. It is further contended that no notice was served and the partition commissioner never appeared in person for cross examination. Lastly if on remand a fresh partition is done no body will be prejudiced .Hence prayed for dismissal of the appeal. Analysis

6. After hearing both the Learned Advocates and going through the materials on record it transpires that the Learned District judge though affirmed the report of the commissioner in respect of other properties, set aside the same in respect of the property mentioned in the schedule of the plaint and remanded back the matter for further hearing after appointing a fresh commissioner . The matter pertains to the order of remand passed by the Learned District Judge whereby remanding the matter with a direction upon the Learned Trial court to appoint the partition commissioner afresh for holding partition commission in respect of the property situated at Govind Nagar Village .

The learned District Judge accepted the Commission report of Tehshildar in respect of property situated at Vijay Nagar village and affirmed the same but set aside the commission report in respect Govind Nagar Village. On careful perusal of the record it transpires that the preliminary decree passed on the basis of the application filed by the respondents under Order 12 Rule 6 of the Code of civil procedure and the judgement on admission passed considering the settlement regarding the respective shares of the parties .

plaintiffs for passing the judgement on admission no dispute existed regarding their declaration of shares. Such preliminary decree was not challenged. The appellant/Plaintiff filed the application under order 26 rule 13 for appointment of a Partition commissioner .The report of the partition commissioner discloses that in order to hold the commission work, a notice was issued on 26.3.2018 to all concerned to attend the spot on 31.3.2018 and a copy of such notice was annexed with the report which was signed by the parties who were present on the date. The commissioner could not conduct the demarcation on that day as all the respondents were not present and fixed on 11.5.2018 and thereafter the suit property was demarcated by the surveyor on 18.5.2018 at 10.00hrs in the field in order to form the partition in accordance with the decree .

Again on20.6.2018 a notice was issued to all concerned on to attend the spot on 23.6.2017 and the spot was inspected by the partition commissioner .The tehsil was demarcated on the field and the proposal for partition was given on the basis of their physical possession and that was mentioned in his report. The commission also annexed the map prepared after survey showing the physical occupation .

7. In the written objection filed by the respondents very specifically it was mentioned that the Tehsil was demarcated in presence of all the parties and filed the report on 31.7.2018 along with proposed partition. It further transpires that the written objection was filed because the Tehshildar allocated the better part of the land in favour of the plaintiff and the proforma defendants and the land is more valuable than the land of the defendants. It was further assailed that the earlier proposed map prepared by the

respondents, the land which was under the possession of the plaintiff was allocated to him as he was using the land for commercial purpose but in the report under challenge the plaintiffs have managed to have the entire share of valuable land .

8. Therefore from the above, point raised regarding preparation of report in absence of the respondent, appears to have no legs to stand upon. In such circumstances when the proposal for partition was made on the basis of their physical possession, no objection was raised on behalf of the respondents and only after the report was submitted the said written objection was filed. The only point for raising the objection was allocation of more valuable portion in favour of the plaintiff which was otherwise done in presence of all the parties. It is specifically assailed before the court by filing the written notes of argument by the learned advocate that in the written objection it was erroneously stated that the demarcation was made in presence of all the parties but subsequently no such petition was filed for taking note of the same.

It can be gathered from the record that one Ramesh Kumar was examined as Tehshilder and he appeared after receiving the summons and proved the report submitted by Govinda Lal the Partition commissioner who took retirement on 31.7.2018. The witness identified the signatures of the report and it was marked with Exhibit 1 without any objection .The witness stated not to have any personal knowledge about the report since he did not prepare the same.

9. This witness deposed on 7.10.21 and after cross examination he was discharged .The next date was fixed for argument regarding acceptance of the

commissioners report, on 10.12.21.After that on two occasion the prayer was made on behalf of the defendants for accommodation and on 17.2.2022 after hearing the argument on the point of acceptance on partition Commissioner's report passed the order on 10.3.2022 accepting the Report of the commissioner and till such time despite praying for accommodation never filed any application for taking note of the fact that in the written objection it was incorrectly mentioned that the report was prepared in presence of all. The learned court thereafter fixed the matter on 10.6.2022 for passing final order. Lastly the Court on 20.9.20022 passed the final decree as per report of the commissioner .The parties were directed to partition the suit property in accordance with the Report submitted by the Partition Commissioner.

10. Against the said Final Decree the Title Appeal was filed by the respondents before the learned District Judge. The learned District Judge considered that the report of the commissioner was erroneous one since no notice was served upon the appellant therein at the time of Survey commission work in respect of the properties in Govind Nagar and accordingly set aside that part of the report of the commissioner whereby the properties in Govind Nagore Village was demarcated. It was further observed that when the preliminary decree was passed on admission in absence of any of the party from the side of defendant 1to7 the survey commissioner was supposed to consider the written Statement which was filed from their side at the time of partition commission work .The learned District Judge further held that since either party has no objection relating to property of Vijay Nagar Village hence the said commission work was

correct and hence that part was not interfered with while the properties at Govind Nagar Village was not accepted .

11. We are unable to concur with the said observation firstly on the ground that if the commission held in a part of the property is held valid how the commission held in respect of other properties were held not valid due to nonservice of notice during survey. If holding of the commission work on the same date in respect of other properties are admitted and it was within the knowledge of the respondent they deny the correctness of the rest of the properties due to non-service of summon. Secondly the report of the commissioner was accepted by the learned court after hearing both the Learned Advocates and the Final Decree was passed much after on the basis of the said Report but the respondent never challenged the order dated 10.3.2022 whereby the said report was accepted .

Lastly the respondents never raised the dispute regarding quantum of land allocated to the parties in different plot numbers but it was specific contention that the lands allotted to the Appellant was more valuable than that were allotted in favour of the Respondents which probably they came to learn after the Final report was accepted. The observation of the Learned District Judge ,compared the portion allotted to each of the respondent in different plot numbers and arrived at a finding that there were inconsistencies and hence it was not properly done. We find that the Learned District Judge exceeded his jurisdiction without considering that the Report was accepted in presence of the representatives of both the parties and no such point was ever raised.

12. The preliminary Decree was never challenged .The Report of commissioner was accepted after examining the Tehshilder who is presently holding such post. The report was Exhibited without objection .The witness deposed on 7.10.21 and the next date was fixed on 10.12.21 for argument and lastly it was argued on 17.2.22 and the order was passed accepting the Partition Commissioner's report the date was fixed for Final Decree and on 29.9.2022 the Decree in Final Form was passed which was challenged before the learned District Judge. More so it is settled law that if no appeal is preferred against Preliminary Decree only restrictions imposed is that in the appeal against Final Decree, the correctness of such preliminary Decree cannot be disputed which was done by the respondent in filing the Title appeal before the Learned District judge after the report of the commissioner was accepted. Therefore this court do not find any merit in this case and hence is liable to be dismissed. Conclusion

13. Therefore this First Miscellaneous appeal stands allowed. The judgement and Decree passed by the Learned District Judge remanding the case for fresh appointment of the partition commissioner in respect of Govind Nagar Village is hereby set aside.

14. The Final Decree passed by the learned Trial Court is hereby affirmed.

15. No order as to costs.

16. Urgent Photostat certified copies of this order, if applied for, be supplied to the parties upon compliance of all necessary formalities. I agree (TIRTHANKAR GHOSH,J.) (CHAITALI CHATTERJEE (DAS),J.)