Usha Roy and Ors. v. Sankar Roy

Calcutta HC13 May 2026FMA/1245/1997

Case brief

AI extract

What is this about?

Keywords: F.M.A. 1245 of 1997; remand set aside; Order 41 Rule 27 CPC production of additional evidence before appellate court; partition suit preliminary decree; inheritance through step son (Botokrishna/Lichubala/Rangabati); Voter List and Voter Identity Card as annexures; Title Appeal No.144 of 1992. Use when arguing that an appellate court cannot remand solely on additional documents where the proponent produces nothing, even prima facie, on the foundational relationship/title point.

What did the court decide?

Remand order of the 1st Appellate Court set aside; 1st Appellate Court directed to decide Title Appeal No.144 of 1992 on merits, uninfluenced by observations in this order, in accordance with law and natural justice; Trial Court records to be sent back immediately; appellants to deposit requisite Special Messenger Cost within a week.

Usha Roy and Ors. Vs Sankar Roy — Calcutta HC (2026) — LawSathi Research

What the court decided

AI extract

Outcome

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Issue for consideration

Whether the 1st Appellate Court was justified in remanding the matter to the Trial Court for fresh adjudication on defendant no.1's Order 41 Rule 27 application (Voter List and Voter Identity Card copies), when nothing was produced to show that Botokrishna was the step son of Lichubala, or whether the appeal ought to have been decided on merits.

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Court's answer

Nothing was sought to be produced before the 1st Appellate Court, even prima facie, to show that Botokrishna was Lichubala's step son; therefore the remand was completely unnecessary and no useful purpose would be served by it.

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Ratio / Principle

Neither before the learned Trial Court nor before the 1st Appellate Court did defendant no.1 produce any document to establish that Rangabati inherited any share in the suit properties, so that defendant no.1 could acquire such share for valuable consideration.

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Key takeaways

The order of remand passed by the 1st Appellate Court is set aside.ratio¶¶23
The 1st Appellate Court is directed to decide the appeal on merits considering all points that may be urged by the parties before it.ratio¶¶23
The appeal is to be decided without being influenced by any observation in this order, in accordance with law, observing the principles of natural justice.ratio

Detailed headnote1 paragraphs

Partition suit — preliminary decree declaring 2/3rd share of plaintiff-appellants and 1/3rd of defendant no.1; on defendant no.1's application under Order 41 Rule 27 of the Code of Civil Procedure annexing Voter List and Voter Identity Card copies, the 1st Appellate Court (Title Appeal No.144 of 1992, Additional District Judge, 1st Court, Midnapore, order dated October 10, 1996) remanded the matter to the Trial Court for fresh adjudication. Held: since nothing was produced before the 1st Appellate Court even prima facie to show that Botokrishna was the step son of Lichubala, the remand was completely unnecessary; no document was ever produced to establish that Rangabati inherited any share or that defendant no.1 acquired it for valuable consideration. Remand order set aside; 1st Appellate Court directed to decide the appeal on merits, uninfluenced by these observations, in accordance with law and natural justice. Appeal disposed of; Trial Court records to be returned; Special Messenger Cost payable by appellants.

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13.05.2026 Item No.14 266045 Court No.08. S. De

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F.M.A. 1245 of 1997

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Usha Roy & Ors. Vs. Sankar Roy.

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Mr. Tanmoy Mukherjee, Mr. Manoranjan Jana, Ms. Mitali Jana, …for the appellants.

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Mr. Arabinda Manna, …for the respondent no.1.

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Dictated by Arijit Banerjee, J.

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This very old First Miscellaneous Appeal of the year 1997 is directed against a judgment and order dated October 10, 1996, passed by learned Additional District Judge, 1^st Court, Midnapore in Title Appeal No.144 of 1992.

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By the said judgment and order, the 1^st Appellant Court remanded the matter to the learned Trial Court for fresh adjudication. Being aggrieved, the respondents in the appeal/plaintiffs have come up by way of this appeal.

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Shorn of unnecessary details, the material facts of the case are, one Lichubala Devi was the owner of certain properties. Lichubala’s husband pre-deceased her. She was issue less. After her demise, the present appellants claimed to be her legal heirs through the two brothers of Lichubala. They claimed 2/3^rd share in the properties in question. They filed a partition suit claiming 2/3^rd share in the concerned properties.

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They admitted that the defendant no.1 in the suit was also a legal heir of Lichubala and had 1/3^rd share in the suit properties.

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The defendant no.6 in the suit, Rangabati Pandit, claimed to be the wife of one Botokrishna Pandit who, according to the defendants in the suit, was a step son of Lichubala.

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The learned Trial Court came to a finding that the defendants could not establish that Rangabati was the wife of Botokrishna nor could the defendants establish that Botokrishna was the step son of Lichubala. Therefore, the claim of the defendant no.1 that he became absolute owner of the suit properties by way of purchase from Rangabati, had no legs to stand upon. Since Rangabati could not establish her title to the suit properties, the question of Rangabati transferring her title to defendant no.1 did not arise. Accordingly, the learned Trial Court decreed the suit in preliminary form declaring 2/3^rd share of the plaintiffs and 1/3^rd share of the defendant no.1.

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Being aggrieved, the defendant no.1 appealed against the preliminary decree. Before the 1^st appellate Court, the defendant no.1 filed an application under Order 41 Rule 27 of the Code of Civil Procedure, annexing copies of a Voter List and Voter Identity Card in support of his contention that Rangabati was Botokrishna’s wife. The learned 1^st

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Appellant Court held that these documents were not in existence when the suit was decreed. The documents were extremely relevant for the purpose of deciding the issue involved in the suit. Therefore, the documents should be admitted and considered. Hence, the 1^st Appellant Court remanded the matter to the learned Trial Court for fresh adjudication after considering the aforesaid documents.

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Being aggrieved, the plaintiffs in the suit have come up by way of this appeal. 8. Learned counsel for the appellants/plaintiffs argued that even assuming that the documents produced by the defendant no.1 before the 1^st Appellant Court establishes that Rangabati is the wife of Botokrishna, nothing was produced before the 1^st Appellant Court to show that Botokrishna was the step-son of Lichubala. There is a specific and clear finding of the learned Trial Court that the defendants could not establish that Botokrishna was the legal heir of Lichubala. Hence, according to learned counsel, the remand was an exercise in futility. The 1^st Appellant Court should have decided the appeal on merits.

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Appearing for the respondent/defendant no.1, learned counsel argued that Lichubala’s husband Chandrakanta Pandit initially married one Nonibala. Botokrishna was born out of that wedlock. After Nonibala passed away, Botokrishna married

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Lichubala. However, learned counsel could not produce any document in support of the aforesaid contention. It also appears that no document in support of such a case was exhibited before the learned Trial Court.

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Therefore, we see that before the 1^st Appellate Court nothing was produced by the appellants therein, to contradict the finding of the learned Trial Court that Botokrishna’s relationship with Lichubala could not be established. If that be so, we have to agree with learned counsel for the appellants that the remand was completely unnecessary. No useful purpose would be served since nothing was sought to be produced before the 1^st Appellate Court to show, even prima facie, that Botokrishna was Lichubala’s step son.

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In other words, neither before the learned Trial Court nor before the 1^st Appellate Court any document was produced by the defendant no.1 to establish that Rangabati inherited any share in the suit properties and the defendant no.1 could, therefore, acquire such share for valuable consideration.

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In view of the aforesaid, we set aside the order of remand passed by the 1^st Appellate Court. The 1^st Appellate Court is directed to decide the appeal on merits considering all points that may be urged by the parties before it. The 1^st Appellate Court shall decide

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the appeal without being influenced by any observation in this order, in accordance with law, observing the principles of natural justice.

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