JUDGMENT : MITALI THAKURIA, J. 1. Heard Mr. M.K. Choudhury, learned counsel for the appellant and Mr. B.D. Goswami, learned counsel for the respondent. 2. This is an appeal under Section 96 of the CPC for setting aside the judgment and decree dated 20.12.2016, passed in Title Suit No. 08/2014 by the learned Civil Judge, Darrang, Mangaldai decreeing the suit. 3. The brief facts of the case is that the respondent as plaintiff instituted a Title Suit No.08/2014 before the learned Civil Judge, Darrang, Mangaldai for declaration of right, title and possession over the C Schedule land for separate Patta of C Schedule land, permanent injunction, restraining the defendant/appellant, his agents dispossessing the plaintiff or interfering in their peaceful possession and also prayed for issuance of preliminary decree for partition of A Schedule land into two equal shares and after equalizing the shares of the plaintiff, half of the Schedule A land be given to the plaintiff/respondent and other half may be given to the defendant/appellant by appointing an Amin Commission. 4. After receiving the summons in said case, the defendant/respondent appeared through their engaged counsel and also filed their Written Statement stating real facts of the case. But subsequently, the defendant failed to appear before the learned Trial Court and on the basis of which the matter proceeded ex parte against the defendant/appellant and on the basis of documents and evidence adduced by the plaintiff/respondent, the suit is accordingly decreed vide judgment and order dated 20.12.2016. 5. It is submitted by Mr. Choudhury, learned counsel that after proceeding with the case ex parte, the defendant/appellant were also not allowed to cross examine the plaintiff witnesses and hence, they did not knew about the delivery of the judgment and came to know about the same only when the Circle Officer, Dalgaon went to the place for demarcation of the land on the strength of the judgment passed by the learned Civil Judge. The defendant/appellant was also cooperating with his engaged counsel, but unfortunately due to fault of the conducting counsel, the suit proceeded ex parte against the defendant/appellant. 6. He further submitted that the A Schedule property can be divided into two parts, i.e., the B Schedule and C Schedule land, which is also described in the said plaint. The entire property is jointly owned and possessed by the two brothers, i.e., the appellant and the respondent. 6. He further submitted that the A Schedule property can be divided into two parts, i.e., the B Schedule and C Schedule land, which is also described in the said plaint. The entire property is jointly owned and possessed by the two brothers, i.e., the appellant and the respondent. But the stand of the plaintiff/respondent is that, the entire C Schedule land falls in his share is not correct and the reason behind claiming the C Schedule land by the plaintiff/respondent is that the entire C Schedule land is a market area which is more valuable than the B Schedule land which is basically a low lying area and agricultural land. Thus, he submitted that if the A Schedule land is to be divided into two equal shares, the appellant/defendant is also entitled for half of the share in both B Schedule and C Schedule land, but without considering this aspect of the case, the learned Civil Judge in one hand had decreed the right, title and interest in favour of the plaintiff/respondent for entire C Schedule land and in the same time, preliminary decree was also issued to partition the A Schedule land into two equal shares for the appellant as well as respondent. Accordingly, he submitted that the matter may be remanded back with a direction to the learned Trial Court to give a chance to the appellant to adduce their evidence and to contest the case accordingly. 7. Mr. Choudhury, learned counsel further submitted that as per the prayer made in the plaint, the appellant sought for declaration of right, title, interest and possession over the C Schedule land and also prayed for issuance of precept directing the Circle Officer, Dalgaon Revenue Circle to issue separate Patta in the name of the plaintiff in respect of C Schedule land along with a prayer for permanent injunction and as per the prayer No. (iv), an alternative preliminary decree for partition is also prayed for division of A Schedule property into two equal shares by appointing an Amin Commissioner. The learned Trial Court accordingly allowed the prayer made in prayer Nos. (i), (ii), (ii) (a), (iii) and also allowed the alternative prayer made in prayer No. (iv) for preliminary decree for issuance of precept to partition the A Schedule land in two equal shares and thus, the decree itself is a defective one and cannot be executed. 8. The learned Trial Court accordingly allowed the prayer made in prayer Nos. (i), (ii), (ii) (a), (iii) and also allowed the alternative prayer made in prayer No. (iv) for preliminary decree for issuance of precept to partition the A Schedule land in two equal shares and thus, the decree itself is a defective one and cannot be executed. 8. He further submitted that the C Schedule land is a market area, wherein all the shops and rented premises are available and the plaintiff/respondent had claimed for entire C Schedule land claiming that there was verbal partition wherein C Schedule land was given to the plaintiff/respondent. But infact there was no such verbal partition and both the plaintiff and the respondent are entitled for equal shares over the entire A Schedule property which comprises of B Schedule + C Schedule property. Mr. Chudhury, accordingly submitted that as the decree itself is not executable, the matter may be remanded back with a direction to the learned Trial Court to hear the matter afresh and to pass judgment accordingly. 9. Mr. Goswami, learned counsel for the respondent also fairly submitted that the decree which has been passed by the learned Trial Court is a defective one and is not executable. It is a fact that the plaintiff prayed for declaration of right, title, interest and possession over the C Schedule property which is still under their possession and apart from that one alternative prayer was also made in the plaint for equal partition of A Schedule property between the two brother, i.e., the plaintiff and defendant by appointing an Amin Commission and issuing precept accordingly. But the learned Civil Judge had allowed the prayer of the plaintiff made in prayer Nos. (i), (ii) (ii) (a), (iii) and the alternative prayer No.(iv) was also allowed. However, it is also a fact that after filing the written statement, the appellant/defendant never appeared before the learned Trial Court for which the case proceeded ex parte against the appellant herein. Mr. Goswami, further submitted that as the decree is not executable one, the matter may be remanded back for fresh disposal, however, he submitted that some of the PWs have already expired during pendency of the present appeal and hence, the learned Trial Court may be directed for giving chance to both the parties to adduce their evidence, who are still alive. 10. Mr. 10. Mr. Goswami, learned counsel further submitted that the C Schedule land is developed by the plaintiff/respondent by spending lots of money and all the shop establishments and the residential house of the respondent are in the C Schedule property and hence, if in the event the C Schedule property is partitioned, the plaintiff/respondent will be in more inconvenient position than the defendant/appellant. 11. Mr. Goswami further submitted that one Amin Commission has already visited the land on the strength of precepts issued by the learned Trial Court and accordingly the report is also submitted by him wherefrom also he found the possession of the plaintiff/respondent over the C Schedule land in Dag Nos. 186, 187, 190 and 191 for total land measuring 2 Bighas, 2 Kathas and 17 Lechas. 12. However, it is submitted by Mr. Goswami, learned counsel that the plaintiff/respondent have no objection if the C Schedule property is divided in a manner without making any disturbance in their possession over the shop establishments and their residential houses and stressed on the point that the Dag Nos. 190 and 191 was developed by the respondent side and hence, if the land is partitioned without hampering their possession over the shop establishment and the residential houses, the respondent has no objection. 13. Mr. Choudhury, learned counsel submitted in this regard that if the entire C Schedule land with all business establishments is partitioned in favour of the plaintiff/respondent, the appellant/defendant will be rather in more inconvenient position as the land under the C Schedule is more valuable in comparison to B Schedule land which is an agricultural land. 14. I have heard the submissions made by the learned counsel for both sides and I have also perused the scanned copy of the TCR. 15. It is seen that the plaintiff/respondent initially filed a declatory suit for right, title interest over C Schedule land and also prayed for issuance of separate Patta over the C Schedule land along with the other relief. However, it is seen that the C Schedule land is under A Schedule land, which comprises both B Schedule and C Schedule lands and admittedly, both the plaintiff/respondent and defendant/appellant are the owners and possessors of the entire A Schedule land. However, it is seen that the C Schedule land is under A Schedule land, which comprises both B Schedule and C Schedule lands and admittedly, both the plaintiff/respondent and defendant/appellant are the owners and possessors of the entire A Schedule land. But the suit was filed by the plaintiff/respondent claiming right, title and interest over the C Schedule land, stating that they are possessing the C Schedule land after verbal agreement/partition. The defendant/appellant appeared in the said suit and filed their W.S., but thereafter, they remained absent and the case proceeded ex parte against the appellant. 16. It is also seen that there were basically three prayers, i.e., prayer Nos. (i), (ii), (ii) (a), (iii) in respect of the land of C Schedule property, but there was also an alternative prayer at prayer No.(iv) for preliminary decree and for issuance of precept for partition of A Schedule land in two equal shares. While decreeing the suit ex parte, the learned Trial Court had allowed all the prayers including the alternative prayer, wherein, prayer for equal share in A Schedule property was made. 17. But from the submission as well as record, it is seen that A Schedule property comprises of B Schedule and C Schedule property and in the event of issuance of precepts of equal partition of A Schedule property, the precepts has to be issued for both B Schedule and C Schedule property and land is to be equally divided amongst the appellant as well as respondent. But it is seen that while decreeing the case, the learned Trial Court in one hand allowed the right, title, interest and possession over the C Schedule property for the plaintiff, but at the same time, the alternative prayer is also allowed for preliminary decree directing for issuance of precept to divide the A Schedule property in two equal shares. Thus, the decree seems to be defective and cannot be executed in the present form. The plaintiff/respondent cannot be given the right, title and interest over of the C Schedule property along with equal partition over the A schedule property. If the A Schedule property is to be divided equally by a preliminary decree, in that event, the defendant/appellant will also be entitled for equal shares in both B Schedule property and C Schedule property as the entire A Schedule property comprises of B Schedule and C Schedule property. 18. If the A Schedule property is to be divided equally by a preliminary decree, in that event, the defendant/appellant will also be entitled for equal shares in both B Schedule property and C Schedule property as the entire A Schedule property comprises of B Schedule and C Schedule property. 18. At the same time, it is also an admitted position that both the plaintiff/respondent and the defendant/appellant are the co-owners and possessor of entire A Schedule property as they inherited the same. There was mention about verbal partition, but there is no such document to prove that there was verbal partition between the parties, wherein C Schedule property was exclusively given to the respondent and B Schedule property was given to the appellant. 19. Further after considering the submissions made by the learned counsel for both sides, it is seen that the respondent also has no objection, if the case is remanded back with a direction for fresh disposal of this case after recording the evidences of both the parties and to dispose of the matter accordingly. 20. At the same time it is also seen that the plaintiff/respondent basically stressed on the point that they have developed the C Schedule land wherein their business establishment and residential houses are situated and in the event of partition, their shop establishment and residential houses may not be disturbed. They basically submitted that they have exclusive possession over the Dag Nos. 190 and 191 of C Schedule property and in the event of any partition their possession of business establishment and residential houses may not be disturbed. 21. Learned counsel for the appellant though admitted that some of the shop establishment was developed by the respondent side, but it is their plea that if the entire C Schedule property is given to the plaintiff/respondent, they will be in more inconvenient position as the C Schedule property is more valuable than the B Schedule property. 22. Considering all these aspects of the case and also considering the fact that the decree which has already been passed by the learned Trial Court is defective one and is not an executable decree, wherein both the prayers for declaration of right, title and interest of the plaintiff over the C Schedule property is declared in their favour and at the same time, the alternative prayer for equal division of A Schedule property was made. 23. 23. In view of above, the case is hereby remanded back to the learned Trial Court with a direction to dispose of the matter afresh, giving an opportunity to adduce evidence to both the appellant and respondent side and the learned Trial Court will pass the decree accordingly considering the fact that none of the parties should face any inconvenience in the event a preliminary decree is passed for equal partition of A Schedule land. 24. With the above observation and directions, this appeal is accordingly disposed of.