The main legal point established in the judgment is that failure to file an appeal against a preliminary decree precludes a party from disputing its correctness in the appeal against the final decree, as per Section 97 of C.P.C.

Tinlianthang Vaiphei, J.

1. Heard Mr. A. Lodh, learned counsel for the appellant and Mr. D.C. Roy, learned counsel for the respondents.

2. The short question of law to be determined in this case is whether this appeal lies in view of Section 97 of C.P.C.

3. The facts relevant for determining this appeal may be summarised as follows :--

The respondent No. 1 in this case had instituted a partition suit bearing No. T.S. (P) 174 of 1992.before the learned Civil Judge (Senior Division), Court No. 1, Agartala, West Tripura against the appellant and other pro-forma respondents for partition of the suit property claiming 3/9 share therein. The appellant contested the suit by filing a written statement of defence. After hearing the parties, the learned Civil Judge (Senior Division) passed a preliminary decree on 18-5-1994 holding that the respondent No. 1 is entitled to get 1/3 shares of the suit property while the defendant Nos. 1 to 6 are entitled to have 1/9 shares each of the suit property. It was also pointed out therein that the respondent No. 1 was entitled to file a petition before the learned Civil Judge after the expiry of six months to draw up the final decree and to appoint a Survey Commissioner to survey the suit land and to demarcate the respective shares of the parties to the suit by meets and bounds. On the petition of the respondent No. 1, a Survey Commissioner was appointed to survey the suit land and demarcate the shares of the parties thereof. The Survey Commissioner accordingly submitted a report on 5-11-2002 along with a hand sketch map before the learned Civil Judge. On coming to know this, the appellant filed a petition before the learned Civil Judge for filing objection against the report of the Survey Commissioner, but the same was rejected by the learned Civil Judge vide order dated 25-1-2003. Thereafter the report of the Survey Commissioner was accepted and final decree was passed in terms of the report of the said Survey Commissioner.

Aggrieved by an dissatisfied with the final decree passed by the learned Civil Judge, the appellant has now preferred this appeal contending, inter alia, that the learned Civil Judge should not have acted upon the report of the Survey Commissioner which did not take into consideration the admitted position that the appellant has constructed a pucca construction in Plot No. 1 of the hand sketch map and also without taking into consideration the valuation of the said construction and also that the report of the Survey Commissioner was made in violation of the provisions of Order 26, Rule 16and 16A of C.P.C. by not examining the parties or any witness to determine the values of the land. Even though the appellant had submitted before the Commissioner that the pucca construction in Plot No. 1 was done at the cost of not less than Rs. 4,00,000/-, which was not even objected by the respondent No. 1 before the Survey Commissioner, the same was not taken note of by him. It was also contended by the appellant that inasmuch as the tenants already in the suit premises were not made parties in the suit, the final decree is not executable. The appellant also asserted that he has been in possession of the plots of land earmarked as Nos. 1 and 2 for long with the knowledge of the respondent No. 1, who never objected to the same, hereby failing to apply the well known principle of equity that where partition is inconvenient the property must be left in the possession of the parties in occupation and that compensation should be paid to the others not in occupation. For all these reasons, the appellant submits that the impugned final decree cannot be sustained in law.

4. The respondent No. 1 has entered his appearance through his learned Counsel and filed a written objection against the memo of appeal. In the written objection, the respondent No. 1 submits that the appeal is not maintainable being barred by Section 97 of C.P.C. and raises preliminary objection regarding the maintainability of