Arindam Lodh, J. - (1.) In impugnment, is the judgment dated 25.11.2016 and decree dated 29.11.2016 in TS (P) 15 of 2015 passed by the learned Civil Judge (Sr.) Division, Gomati District, Udaipur, Tripura, wherein, the suit was decreed preliminary and the plaintiffs & the defendants were declared to be the joint owners in equal shares. The said preliminary decree was granted in the terms as under: "In the result, I find and it is declared that the plaintiff and defendant No. 1 and 2 each are equal shareholder of the suit land i.e., the plaintiff and defendant No. 1 and 2 are entitled get 1/3rd share each of the suit land. Accordingly, both the parties are directed to amicably partition the suit land by meets and bounds within 20 days failing which any party can move the Court on the next date fixed for final partition of the suit land by appointment of survey commissioner. Prepare decree accordingly."
(2.) The facts of the case as surfaced in the pleadings of the parties and encrypted by the court below may be reproduced hereunder: "1. This is a suit for partition of the suit land along with a prayer for temporary injunction. 2. The brief fact of the plaintiff's case is that the predecessor of the plaintiff and defendants' Rabia Khatoon was the original owner of the suit land and she died on 03.03.1993 leaving plaintiff and defendants and her husband Abdul Majid Miah, who subsequently died on 01.03.1995, as legal hairs and, thus, the plaintiff and defendants became the owner of the suit land by way of inheritance and as per Muslim law plaintiff and defendant No. 1 being the sons of original owner entitled to get double share each of the share of defendant No. 2 of the suit land i.e., plaintiff and defendant No. 1 are entitled to get 4/10th share of the suit land each and defendant No. 2 is entitled to get 2/10th share of the suit land but the defendants No. 1 and 2 keeping the plaintiff in dark mutated the suit land in favour of the plaintiff and defendants in equal shares vide MR case No. 201510946 and the suit land is still joint property and no amicable or legal partition was made and the plaintiff requested the defendants on many occasions for amicable partition of the suit land and lastly on 10.09.2015 but the defendants denied to do so. Hence, this suit. It is also the plea of the plaintiff that on 15.09.2015 the defendants illegally started construction work on the part of the suit land inspite of protest of plaintiff and if construction is completed it will be very difficult to cause partition of the suit land for which the plaintiff filed an injunction petition along with this suit and by order dated 05.0.2016 passed in Civil Misc. No. 83 of 2015 this Court directed and restrained the defendants from constructing any further construction over the suit land until further order and without the leave of the Court till the disposal of this suit. 3. The suit of the plaintiff is contested by defendants No. 1 and 2 by filing separate written statement denying claim of the share of the plaintiff and, inter alia, pleaded that the suit land was orally gifted by the original owner Rabia Khatun during her life time among the plaintiff and the defendants in equal shares and, therefore, the plea of the plaintiff that the plaintiff and defendant No. 1 are entitled to get 4/10th share of the suit land and defendant No. 2 is entitled to get 2/10th share of the suit land is liable to be rejected. It is also pleaded that the plaintiff constructed dwelling house made by half pucca wall fencing and tin roof with wooden structure, pucca floor in the portion 0.05 acre out of 0.14 acres of land in plot No. 2117 and few years back the plaintiff tried to created disturbance in the joint possession of gifted land and the defendant No. 2 on many occasions requested for partition of the suit land but the plaintiff refused to make partition for which the plaintiff filed suit for partition and subsequently, the same was withdrawn due to some defect as the plaintiff illegally claimed other land on the basis of forged deed created by plaintiff in connivance with others and now a criminal case vide R.K Pur P.S. Case No.243/2014 is pending against the plaintiff and the defendant is filing a suit for cancellation of the said forged deed with other relief over their land under other khatian. The defendants also pleaded that in the middle part of the year 2015 the defendant also constructed a dwelling house b y tin fencing and roof over the rest 0.09 acre on the southern part of the plot No. 2117 and the plaintiff suppressing the oral gift filed this false suit and, accordingly, the defendants prayed for dismissal of the suit of the plaintiff."
(3.) The learned trial court after hearing the parties to the lis, and having regard to the relevant facts pleaded in plaint and written statement including all other materials brought on record had framed the following issues: (I) Whether the suit maintainable? (II) Whether there is any cause of action for filing this suit? (III) Whether the suit land is gifted by deceased Rabia Khatoon to the plaintiff, defendant No.1 and 2 in equal shares? (IV) Whether the suit land measuring 1.15 acres or 1.20 acres? (V) Whether the plaintiff is entitled to get the decree as prayed for and or any other relief/reliefs in this suit?" ;