JUDGMENT : Ajay Rastogi, J. The instant appeal u/Sec. 96 has been preferred at the instance of the defendant No.3 to the suit impugning the judgment and final decree dated 02.06.2016 passed in T.S.(P) No.08 of 2013 by the learned Civil Judge, Senior Division No.2, Agartala, West Tripura. 2. The brief facts in nutshell are that the respondent No.1, Ashok Bhowmik(plaintiff) filed a suit for partition for the ancestral property measuring 0.0520 satak corresponding to 2.5 Gandas approximately recorded in Khatian No.895 Tehashil-Agartala, Mouja-Agartala, Sheet No.5, under C. S. Plot No.4093 p, 4095 p, corresponding to R.S. Plot No.1374 and 1375. It is not disputed that it was the ancestral property in reference to which suit for partition was filed at the instance of one of the legal heirs all the other four legal heirs are survivors of late Hiralal Bhowmik, who died on 01.05.2010 and their mother, wife of late Hiralal Bhowmik, died prior to his death and late Hiralal Bhowmik died intestate leaving behind only four legal heirs, one of them approached for partition of the suit land to be equally divided in the ratio 1:4. 3. The description of the suit land which has not been disputed by the parties also has been indicated specifically in Schedule-A of the plaint, which is reproduced herein below:- “SCHEDULE-A Within the District of West-Tripura, recorded in Khatian No.895, Teshil:- Agartala(West), Mouja:- Agartala, Sheet No.5, as C.S. Plot No.4093(P) and 4095(P), corresponding to Hal Dag No.1374 and 1375 each measuring 0.02 Satak and 0.0320 Satak respectively in total an area of 0.0520 Satak (2.5 ganda approximate). Butted and bounded by :- In the North – path way to the house of Sri Matilal Bhowmik. In South – path way to the house of Sri Goutam Shil. In East – house of Sri Matilal Bhowmik. In West – Road. Within this boundaries total land measuring 0.0520 Satak (2.5 Ganda approximately).” 4. At one stage after the notice of the suit came to be served, the Court directed the parties to resolve it amicably but it could not be finally resolved. 5. In East – house of Sri Matilal Bhowmik. In West – Road. Within this boundaries total land measuring 0.0520 Satak (2.5 Ganda approximately).” 4. At one stage after the notice of the suit came to be served, the Court directed the parties to resolve it amicably but it could not be finally resolved. 5. On the basis of the material on record and after the parties being heard the learned trial Judge passed the preliminary decree in the original suit bearing No. T.S.(P) 08 of 2013 on 11.03.2015, which is reproduced herein below:- “It is ordered and decreed that “In the result, this suit stands decreed on contest without costs. The plaintiff and the defendants are entitled to 1/4th equal share each of the suit property reflected in the Schedule-A of the plaint. So, all the 4(four) shareholders will get equal share of the quantum of 0.0130 Satak of land from their ancestral property. This order can be treated as a direction for partition of the property mutually in between the parties. The parties to this suit are directed to make amicable partition of the suit land within 2(two) months. If the parties to this suit fail to make partition of the suit land as indicated above, each party to this suit shall be at liberty to approach the Court to have the final decree according to law. If parties fail to make partition among themselves mutually then as per request of any party court may appoint a Commissioner for getting the report by which the suit property will be partitioned by metes and bounds by appointing Survey Commissioner. The parties shall bear the costs of the suit of their own. Prepare preliminary decree accordingly. Accordingly, this case is disposed of on contest. Pronounced.” 6. That either of the parties was not aggrieved by the preliminary decree dt. 11th March, 2015 that is reached to the finality. After passing of the final preliminary decree dt. The parties shall bear the costs of the suit of their own. Prepare preliminary decree accordingly. Accordingly, this case is disposed of on contest. Pronounced.” 6. That either of the parties was not aggrieved by the preliminary decree dt. 11th March, 2015 that is reached to the finality. After passing of the final preliminary decree dt. 11th March, 2015 for its equal distribution as per the metes and bounds, the respondent No. 1/plaintiff filed an application under Order-XXVI Rule-9 read with Section-151 of the CPC for appointment of the Survey Commissioner and after the parties being heard by the learned Civil Judge, appointed the Survey Commissioner to physically conduct the inquiry and to prepare a hand sketch map of the suit land in the presence of the parties and after affording opportunities to the parties, to submit the survey report. In accordance to the direction of the learned Civil Judge, the Survey Commissioner went to the site and after due notice to all the respective parties and after affording opportunities to each of them, conducted the physical survey/inquiry of the suit land and submitted the survey report dt. 29th November, 2015. 7. Indisputably, along with the survey report dt.28.11.2015 the suit land has been equally apportioned in the ratio of 1:4 and each of the legal heirs in holding land measuring 516 sq ft. and the site plan of the suit land was also enclosed with the survey report and this has not been disputed by either of the parties that each of them has been equally apportioned of the suit land in the ratio of 1:4 as entitled for. It is not disputed that the Survey Commissioner prepared its report dt. 28th November, 2015 in presence of the parties and there is no iota of any indication of dwelling hut being constructed of any part of the suit land and either of them, has not raised any objection to the survey report furnished by the commissioner under the direction of the learned Civil Judge. 8. It may be relevant to notice that the present appellant who is the defendant No. 3 in the suit land filed his written statement jointly with the defendant No. 1 and although a reference was made in Para-5 of the written statement that dwelling hut was constructed during the life time of the deceased father with his permission and desire. It may be relevant to notice that the present appellant who is the defendant No. 3 in the suit land filed his written statement jointly with the defendant No. 1 and although a reference was made in Para-5 of the written statement that dwelling hut was constructed during the life time of the deceased father with his permission and desire. But no tangible evidence was either laid or placed on record to substantiate the statements of fact alleged in the written statement. At the same time, it can be further noticed that the defendant No. 1 to the suit never raised objection at any stage questioning the survey report or filing of any written objection before the learned Civil Judge questioning the physical status of the suit land indicated by the Commissioner in its survey report furnished to the court dt.28th November, 2015 and the present appellant alone submitted written objection and the objection which was very emphatically submitted before us referred to in para-4 of that he has constructed a dwelling hut in the northern portion of the original homestead premises after taking loan from the bank with consent of the original owner during his life time. Thus from the extreme south the first plot was possessed by Sri Anup Bhowmik and the second plot towards north was possessed by Sri Ashis Bhowmik and the third plot towards from north was possessed by Sri Ashim Bhowmik (appellant) and last plot which is situated to the extreme north is lying vacant and the survey commissioner in its sketch map allotted the extreme north plot to the plaintiff by demarcating the suit land marked as Plot No.’A’ and as per physical possession plot No.’B’ should have been allotted in favour of the defendant No.3, (appellant) namely, Sri Ashim Bhowmik. The survey commissioner allotted the plot No.’B’ in favour of another defendant namely, Sri Ashis Bhowmik. 9. That in the written objection which has been filed by the present appellant and para-4 in particular although a reference has been made but that has not been supported by the defendant No. 1 to the suit along with whom a joint written statement was filed by the present appellant as the defendant No. 3 regarding construction of a dwelling hut with prior permission of late father Hiralal Bhowmik. That apart, no tangible documentary evidence was placed on record which could even prima facie substantiate that there was any dwelling hut constructed or he took loan from financial institution for the purpose of construction or being in possession of some portion of the suit land during the course of partition. 10. On the contrary from the appeal which has been preferred by the appellant and para 8 in particular his apprehension appears to be is that the respondents No.1 and 3, who are none other than his own real brothers have made some internal arrangement to sell their shares jointly and both respondents No.1 and 3 joined hands together, having their shares on the northern part of the suit land opened towards Joynagar middle road, they may get a better price/market value of the share. 11. Taking note of the written objections filed by the appellant the learned trial Judge find no substance on the objections raised and overruling the objections final judgment and decree was passed on 05.04.2016 confirming the partition/apportionment proposed by the commissioner in its report to be carried out in terms of approval granted by the learned trial Judge. “In the result, hear and considered. Ld. Advocate of defendant No. 1 & 3 Mr. Bidyut Datta objected the report stating that deft. No. 3 Asim Bhowmik has constructed a building on the northern portion of the original homestead by taking loan, but it cannot be considered in the report of commissioner as measurement was done in presence of parties and none raised objection at the earliest opportunity and nobody got less share as all the allotted four plots are same in partition schedule and hand sketch map dated 28.11.2015 submitted by commissioner. The contention of this deft cannot be accepted because it is not supported by other shareholders. So the objection raised by deft could not inspire confidence of the Court as it is devoid of merit and hence the same is rejected. Thus, the report of survey commissioner is hereby accepted. Plaintiff is to supply stamps for preparing final decree. Thus, the partition suit is finally disposed of on contest.” 12. So the objection raised by deft could not inspire confidence of the Court as it is devoid of merit and hence the same is rejected. Thus, the report of survey commissioner is hereby accepted. Plaintiff is to supply stamps for preparing final decree. Thus, the partition suit is finally disposed of on contest.” 12. The only submission made by counsel for the appellant is that the survey commissioner has not complied with the procedure for partition of ancestral property as envisaged under Order XXVI Rule 13 and 14 CPC and according to him he has exceeded in its jurisdiction in making apportionment of the suit land in question without there being any direction/order by the learned trial Judge and the apportionment made by the survey commissioner in its report is not even in contravention of Order XXVI Rule 14 of CPC but beyond its jurisdiction and this is nothing but usurping the power of a judicial court which has not been vested to him. 13. In the given facts and circumstances the learned trial Judge might have confirmed the survey report but to the contrary it was for the learned trial Judge to examine the survey commissioner’s report and written objection filed by the parties and to decide the same in accordance with law and apportionment of equal share amongst the four siblings in the ratio 1:4 has to be carried out by the learned trial Judge keeping in view the survey report as piece of evidence on record for the purpose of passing of the final decree and thus the procedure as envisaged under Order XXVI Rule 13 and 14 CPC has not been complied with and that being so the final decree passed by the learned trial Judge deserves to be set aside and the matter be remitted back to the Ld. Trial Judge for examining the written objections and to decide it afresh in accordance with law. 14. Counsel for the respondents jointly oppose the request and submits that the survey commissioner’s report indicate apportionment in the ratio of 1:4 of the suit land in question opened to the learned trial Judge to examine the written objection and decide the same in accordance with law. 14. Counsel for the respondents jointly oppose the request and submits that the survey commissioner’s report indicate apportionment in the ratio of 1:4 of the suit land in question opened to the learned trial Judge to examine the written objection and decide the same in accordance with law. None of three bothers has raised any objection except the present appellant and there was no tangible evidence on record about the construction if it has been raised and at the same time no objection was ever raised on the survey report prepared by the survey commissioner in presence of the parties. At the same time the learned trial Judge has given opportunity and after being satisfied that the objections made by the appellant has no substance passed the final decree and in the given facts and circumstances there appears no error being committed by the learned trial Judge in passing the final decree which calls for interference and the present appeal is wholly without substance and accordingly be dismissed. 15. We have heard the counsel for the parties and with their assistance perused the materials available on record. 16. The in-disputed fact which has come on record are that the suit for partition was filed by Sri Ashok Bhowmik (plaintiff) impleading his three other siblings as the defendants and the plaintiff and the three defendants to the suit are the legal heirs and survivors of late Hiralal Bhowmik, who died on 01.05.2010 and their mother late Kalpana Bhowmik died prior to death of their father, late Hiralal Bhowmik, who died intestate leaving behind four siblings as legal heirs and each of them was entitled for 1/4th share and is entitled for 516 sqft. of the suit land which is indeed apportioned to each of them. Description of the suit land has been indicated in Schedule-A of which reference has been made has also not disputed by either of the parties. 17. of the suit land which is indeed apportioned to each of them. Description of the suit land has been indicated in Schedule-A of which reference has been made has also not disputed by either of the parties. 17. After the written statement being filed by the contesting respondents a preliminary decree was passed by the learned trial Judge on 11.03.2015 and either of the parties were not aggrieved by the preliminary decree and thereafter on an application filed by the respondent No.1/plaintiff under Order XXVI Rule 9 CPC, survey commissioner was appointed by the learned trial Judge for physical enquiry and to prepare a hand sketch map of the suit land and survey commissioner submitted its report after holding physical enquiry on 28.11.2015 with the hand sketch map in Schedule-A is enclosed with the equal apportionment of the suit land in the ratio 1:4 for each of the legal heirs of late Hiralal Bhowmik. 18. The written objection filed by the appellant was only in reference to the fact that he has raised some construction after taking loan over the portion of land allotted to his other brother and this has not been noticed in the report and it is an apparent error in the survey commissioner’s report, but nothing has come out on record by which even an inference can be drawn that there was any construction, pucca or kucha was raised over the suit land in question not only by the appellant but either by their father or by any other legal heirs and the present appellant filed written statement along with defendant No.1 before the learned trial Judge wherein number of objections were raised including a passing reference was made of raising construction over the suit land by them but the fact is that the defendant No. 1 along with whom he jointly filed the written statement has not supported his written objection. 19. 19. The learned trial Judge after the survey commissioner’s report being furnished afforded opportunity of hearing and taking note of the objection raised, passed the final decree dated 05.04.2016, which has been challenged on limited ground by the appellant that the procedure prescribed under Order XXVI rule 13 and 14 CPC has not been followed and the survey commissioner has exceeded its jurisdiction and usurp the power of the learned trial Judge and this according to him is an apparent error committed by the learned trial Judge in passing the final decree. 20. The submission is without substance for the reason that Order XXVI Rule 13 CPC authorises the Court where a preliminary decree for partition has been passed in the given facts and circumstances if required to appoint a commissioner for partition or separation according to the rights as declared in the preliminary decree. 21. In the instant case, the preliminary decree was passed on 11.03.2015 with the direction that parties to the suit are entitled to 1/4th share each of the suit land reflected in schedule-A of the plaint and how much is the equal share to which the plaintiff/defendants are entitled for of their ancestral property and according to the terms of the preliminary decree the survey commissioner under the directions of the Court submitted its report and complied the procedure as envisaged under Order XXVI rule 14 CPC. 22. It is not the case of the appellant that a proper notice or opportunity has not been afforded by the survey commissioner or the report has been prepared by the commissioner behind his back or there is any violation of the mandate of law committed by him. The survey report furnished by the commissioner clearly indicates that equal share has been apportioned of the suit land in the ratio of 1:4 amongst the four siblings and there is no dispute that the apportionment is not in the ratio of equal share being divided/partitioned amongst the four siblings. The survey report furnished by the commissioner clearly indicates that equal share has been apportioned of the suit land in the ratio of 1:4 amongst the four siblings and there is no dispute that the apportionment is not in the ratio of equal share being divided/partitioned amongst the four siblings. That apart, the survey commissioner has submitted report only to facilitate the learned trial Judge for passing of the final decree and after the opportunity being afforded and written objections of the appellant being considered holding no merit and accordingly passed the final decree with the equal apportionment of share in the ratio of 1:4 amongst all the four siblings of the suit land in question while passing the final decree. 23. This Court finds no error in the procedure being followed by the learned trial Judge in passing the final decree dt. 02.06.2016 which may call for interference in the instant appeal. Consequently, the appeal is without substance and accordingly dismissed. No cost.