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Judgment
Sabyasachi Bhattacharyya, J.:-
The affidavit-of-service filed in Court today be kept on record.
The present First Appeal has been preferred against a final decree of partition.
On the last occasion when the matter was heard, the learned Advocate appearing for the plaintiffs/respondent nos. 1 to 4 raised a preliminary objection as to the appeal not being maintainable, having been preferred against a decree passed on consent.
On the query of Court, however, learned counsel for the plaintiffs/respondent nos. 1 to 4 furnished a copy of the preliminary decree, which was, indeed, passed on consent.
However, a preliminary decree in a partition suit only pertains to the declaration of title of the parties to the suit property and the declaration of their respective shares therein, and does not have a bearing on the allocation of such shares, which is only done at the final decree stage. Hence, the scopes of adjudication at the preliminary decree stage and at the final decree stage are entirely different.
Thus, the consent given at the stage of preliminary decree cannot be said to extend to the final decree as well.
If the proposition argued by the respondent nos. 1 to 4 on such score were to be accepted, there would be no necessity for a final decree proceeding to succeed a preliminary decree in a partition suit. Hence, such objection raised by the plaintiffs/respondent nos. 1 to 4 is turned down in limine.
We had further enquired of the learned Advocate for the defendant no. 1/appellant on the earlier occasion as to whether the order filed with the memorandum of the appeal, accompanying the decree, was the only judgment passed by the learned Trial Judge.
Learned counsel appearing for the appellant, in his usual fairness, had sought an accommodation to bring before the Court all the relevant preceding orders, pursuant to which, during hearing, the certified copy of the order sheet of the suit is produced, from which we find that, vide Order No. 52 dated February 20, 2025, a day fixed for hearing on the Partition Commissioner’s report, although the plaintiff had filed hazira, none had moved the matter for the defendants, due to which the matter was postponed till March 7, 2025. Vide order no. 53 dated March 7, 2025, the learned Trial Judge recorded that no objection was filed to the Commissioner’s report, although the day was fixed for hearing on the Commissioner’s report. It was further recorded that none had appeared to raise objection against the Commissioner’s report. It is only on such premise (of the defendants having not taken any objection to the Commissioner’s report) that the learned Trial Judge proceeded to observe that the Commissioner’s report stood accepted accordingly and was kept on the record.
The learned Trial Judge, vide Order No. 53 dated March 7, 2025, further directed verification and report by SDR on the valuation report filed by the plaintiff and by subsequent orders, ultimately assessed the court-fees/valuation of the suit property, which amount was duly deposited.
Thus, we find a substantial order being recorded by the learned Trial Judge accepting the Partition Commissioner’s report, that too on the premise that no objection was raised at all by the present appellant against the said report.
In such backdrop, the appellant now seeks to challenge the final decree on the ground that the Partition Commissioner allocated a slice of the suit property to the appellant which is not capable of being constructed upon.
Learned counsel for the appellant argues that it was an obligation cast on the learned Trial Judge, even if no objection was raised to the Commissioner’s report, to independently assess whether the Commissioner’s report was to be accepted.
However, we do not find any merit in such contention. The scope of adjudication after the Commissioner’s report is filed, in the event no objection is raised thereto, is only restricted to whether the Commissioner’s report is otherwise in form and valid in la w.
However, in the absence of any objection to the report by any party, no obligation is cast upon the learned Trial Judge to look into the allotment of shares and consider the convenience of the parties, which would then be an unwarranted imposition of the opinion of the Judge himself/herself, giving rise to a third case not made out by either of the parties.
Thus, the learned Trial Judge cannot be faulted for having not entered into any further enquiry after the Commissioner’s report was not objected to by the appellant.
Even otherwise, we find no illegality or irregularity in the Commissioner’s report per se. The objection raised before this Court is only to the effect that the allotment of share given to the appellant was not according to the liking of the appellant, on whatever ground, which cannot be a valid ground for challenge in appeal.
Learned counsel for the appellant raises a further question as to whether the impugned decree is sustainable, by alleging that the learned Advocate representing the appellant in the Trial Court, who had filed Vakalatnama on behalf of the appellant, had also appeared on behalf of the plaintiffs/respondent nos. 1 to 4 by filing a Vakalatnama on their behalf.
On the ground of such collusion, the learned Advocate for the appellant seeks this Court to interfere with the impugned judgment and decree to set it aside and/or at least remand the matter to the learned Trial Court.
However, it is trite law that insofar as the events transpiring during proceedings before a particular court is concerned, if a party is of the opinion that such events were recorded wrongly by the Trial Court, it is for such party to approach to the said Court itself, that too preferably when the Presiding Officer of the court is still available in the said Court.
A completely new case, not argued in the Trial Court, that too on the serious ground of fraud allegedly practised by the appellant’s Advocate in the Trial Court against the appellant himself, which requires particulars of such fraud to be pleaded, cannot be raised for the first time before the appellate court.
The limited scope of interference, even in a First Appeal, which is the last court of facts, is to ascertain whether there was any illegality, any error of either fact or law, and/or perversity in the impugned judgment.
The appellate court cannot substitute its own views for that of the learned Trial Judge merely because such view is possible, unless there is an error on the part of the Trial Court.
In the circumstances of the present case, no case of fraud was made out at any point of time before the learned Trial Judge and there was no objection raised to the Partition Commissioner’s report, which led to the acceptance of the same by the Trial Court.
We do not find any iota of error in such exercise by the learned Trial Judge while passing the impugned judgment and decree.
Accordingly, there is no scope of interference with the impugned decree.
Thus, the First Appeal, being utterly devoid of merits, need not be kept pending unnecessarily in this Court any further.
In view of the above observations, FA No. 133 of 2026 is dismissed on contest, thereby affirming the impugned judgment and final decree of partition dated December 20, 2025 passed by the learned Civil Judge (Senior Division) at Jhargram, District – Jhargram in Title Suit No. 97 of 2018.
CAN 1 of 2026 is also disposed of accordingly.
It is, however, made clear that in the event the appellant is otherwise so entitled in law, nothing in the dismissal of the present appeal or any of the observations made above shall preclude the appellant from fling an independent suit before the Court which passed the impugned judgment and decree, alleging fraud on the part of the learned Advocate appearing for the appellant in the Trial Court against the appellant.
If such a suit is filed, the same will be decided independently and in accordance with law, without being unnecessarily influenced in any manner by any of the above observations or the dismissal of the present appeal.
Interim order, if any, stands vacated.
There will be no order as to costs.
A formal decree be drawn up accordingly.