Failure to appeal a preliminary decree precludes contesting its correctness in final decree appeals.

1. Having heard Mr. P. Chakraborty, the learned counsel for the petitioner at considerable length, this revision is absolutely devoid of merit and is being dismissed at the very threshold.

2. The petitioner is the defendant No. 5 in the suit. The respondent No. 1 is the plaintiff in the suit and instituted the suit against the petitioner and five other defendants before the learned Civil Judge, Junior Division, West Tripura for partitioning the suit land for declaring her entitlement to 1/7th share thereon. The learned Civil Judge by the order dated 5-2-2005 passed a preliminary decree declaring 1/7th share each of the respondent No. 1 and the 6 defendants including the petitioner. Thereafter, the defendant No. 1, who is the mother of the respondent No. 2 and the five defendants including the petitioner died whereupon her right to and interest in the suit land devolved upon them. This resulted in correction of the respective shares of the parties on the suit land to 1/6th. When the parties could not amicably partition the suit land, the respondent No. filed an application for final decree for declaring their respective shares to the extent of 1/6th in the suit land. A survey commissioner was thereafter appointed.

3. The petitioner filed a written objection against the application of the respondent No. 2 for passing a final decree and at the same time filed an application stating that his mother and sister had gifted their respective shares in the suit land in his favour by the Gift Deed bearing No. 1-2665 dated 16-5-1996. The trial court then directed the petitioner to produce the said Gift Deed, but he could not do so despite exercise of due diligence by him whereupon the trial court drew adverse inference against him and rejected the application so filed by him. The petitioner also filed an application under O.18, R.17 and R.18, CPC for examining him to prove the said Gift Deed. In the meantime, the respondent No. 2 filed his written objection against the said application on the ground that the applications were after - thought and a device to stall the proceeding and prayed for the rejection thereof. The trial court after hearing the parties passed the impugned order rejecting the said applications. Aggrieved by this, this revision is preferred by the petitioner. It is the contention of Mr. P. Chakraborty, the learned counsel for the petitioner that the petitioner has now become entitled to 3/7th share of the suit land by virtue of the said Gift Deed and the trial court misdirected itself by fixing a date for hearing on the report of the Survey Commissioner without considering his new case vis - a - vis the said Gift Deed; this resulted in irreparable loss to him. He, therefore, submits that there is improper exercise of jurisdiction by the trial court in throwing out his case without hearing him on merit.

4. I have given my anxious consideration to the contentions advanced by the learned counsel for the petitioner, but do not find any merit thereon. Preliminary decree is undoubtedly an appealable decree. S.97 of CPC is in the following terms:

'97. Appeal from final decree where no appeal from preliminary decree. - Where any party aggrieved by a preliminary decree passed after the commencement of this Code does not appeal from such decree, he shall be precluded from disputing its correctness in any appeal which may be preferred from the final decree.'

5. The Apex Court had an occasion to consider the provision of S.97, CPC in Mool Chand v. Dy. Director, Consolidation , 1995 (5) SCC 631 : AIR 1995 SC 2493 and explained the legal position in the following manner:

'26. Thus, if an appeal is not filed against the preliminary decree and its correctness is not cha