Importance of challenging a preliminary decree and addressing third-party interests in partition suits.

1. Heard Mr. N.G. Nandi, learned counsel appearing for the petitioner as well as Mr. D. Chakraborty, learned senior counsel assisted by Mr. H. Laskar, learned counsel appearing for the respondent no. 1. Also heard Ms. S. Debgupta, learned counsel appearing for the respondents no. 3, 4, 5, 6 and 9(i), Mr. R.G. Chakraborty, learned counsel appearing for the respondents no. 11, 12 and 14 and Mr. D.C. Roy, learned counsel appearing for the respondent no. 13.

2. By means of this petition filed under Article 227 of the Constitution of India, the petitioner has challenged the order dated 23.02.2016 passed in T.S. (P) No. 70 of 2007 by the Civil Judge, Senior Division, Court no. 2, West Tripura, Agartala whereby the report dated 18.01.2016 filed by the Survey Commissioner has been accepted and the final decree has been passed.

3. Mr. Nandi, learned counsel has submitted that defendant no. 9, the petitioner herein, had purchased the land measuring 1 kani 11 gandas i.e. .62 acres by a sale deed dated 21.03.1992 from one Haradhan Ghosh who according to his instruction purchased the said land from one of the co-perceners of the joint property. Though the petitioner was a party in the partition suit, he did not file any written statement or introduced the said sale deed for adjustment of the property purchased from one of the perceners under Section 44 of the Transfer of Properties Act.

4. However, this fact was brought to the notice of the trial court by way of oral submission as made by the petitioner’s counsel on 30.05.2011. From the said submission, it appears that the co-perceners namely Sri Ramchandra Debnath, i.e. the defendant no. 1 of the said suit sold various pieces of land with due notice to the other co-perceners. There is no dispute that the land as described in the sale deed dated 21.03.1992 are within the suit property as described in the schedule of the plaint. By the preliminary decree dated 22.06.2011, the Civil Judge, Senior Division, Court no. 2, West Tripura, Agartala had recorded as under:

“It is ordered and decreed that in view of the aforesaid findings and discussions this suit is hereby decreed on contest. As it is a partition suit one preliminary decree is hereby passed declaring that the suit property of this suit will include the portion of the landed properties which had been sold out by the defendant no. 1 most illegally to Sri Mrinal Paul, Sri Manik Paul and Sri Partha Sarathi Baidya @ Sri Partha Baidya vide registered sale deeds no. 1-2365, dated 29.03.2007 AD, 1-5590, dated 04.08.2007 AD and 1-7485, dated 05.11.2007 AD and after such inclusion of land, plaintiff Smt. Sumitra Debnath (Das) will get one sixth share of the aforesaid total suit land, defendant no. 1 and 2 Sri Kulendra Debnath and Smt. Sadhana @ Hachani Debnath will get one sixth share each of the said total land, defendant no. 3, 4 and 5 jointly will get one sixth share of the total suit land and defendant no. 6 and 7 will get one sixth share of the said land jointly and defendant no. 8, Smt. Sabitri Debnath (Chakraborty) will get one sixth share of the total suit land.

Since, the suit property is a joint ancestral property, the plaintiff and the defendants no. 1-8 are directed to partition of the suit property amongst themselves as per their amicable settlement within 6 months from today failing which any of the parties to this suit are at liberty to approach this court for a final decree after expiry of 6 months as aforesaid.

Prepare preliminary decree accordingly.”

5. It is apparent that though it was within the notice of the petitioner as the defendant no. 9 in the suit, the said decree was not challenged by him though now he is claiming that he had a title by virtue of the said sale deed over a part of the suit property. As, in terms of the said preliminary decree, the property could not be partitioned, the proceeding for drawing the final decree was put on motion in order to partition the joint property by metes and bounds a