Allowed

Manju Kalita and 4 Ors. v. Robita Barman@Robita Barman Kalita

Gauhati HC6 Jan 2026I.A.(Civil)/3537/2023

Case brief

AI extract

What is this about?

Applicants sought rejection of a civil revision against a judgment-on-admission order passed under Order XII Rule 6 CPC in a partition suit, contending the order was a decree appealable under Section 96. The Court held such an order is a decree within Section 2(2), allowed the application and dismissed the revision as not maintainable.

What did the court decide?

Application allowed; CRP(IO) No.12/2023 dismissed as not maintainable, with liberty to avail appropriate remedy.

Manju Kalita and 4 Ors. Vs Robita Barman@Robita Barman Kalita — Partition | Gauhati HC (2026)

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Page No.# 1/7

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GAHC010256412023

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THE GAUHATI HIGH COURT (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

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Case No. : I.A.(Civil)/3537/2023

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MANJU KALITA AND 4 ORS

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W/O JOY CHARAN DEKA R/O AMAR PATH HOUSE NO. 3 GEETANAGAR M.T. ROAD GUWAHATI-24 DIST. KAMRUP (M) ASSAM

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2: KANIKA DAS @ KANIKA KALITA DAS

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W/O AJOY DAS R/O COLLEGE ROAD KUNDIL NAGAR HOUSE ON. 12 BELTOLA GUWAHATI-29 DIST. KAMRUP (M) ASSAM

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3: NIYOTI DAS @ NIYOTI KALITA DAS

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W/O DEBEN CHANDRA DAS D.B. ROAD MELACHAKRA TINIALI SIBASAGAR PIN-785640

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4: DEBAJANI KALITA @ DEBEJANI KALITA DUTTA

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W/O DIPENJYOTI DUTTA R/O HOUSE NO. 15 OPPOSITE GENESH MANDIR PUB SARANIA HILL SIDE ROAD CHANDMARI SILPUKHURI GUWAHATI-3 DIST. KAMRUP (M) ASSAM

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5: JYOTSNA KALITA @ JYOTSNA KALITA CHOUDHURY W/O NABARUP CHOUDHURY R/O HOUSE NO. 5 BASISTHAPUR II HATIGAON GUWAHATI-24 DIST. KAMRUP (M) ASSA

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VERSUS

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ROBITA BARMAN@ROBITA BARMAN KALITA, W/O LT. GAURI SHANKAR KALITA, R/O HOUSE NO. 15, PUB SARANIA ,P.S. CHANDMARI, GUWAHATI-3, DIST. KAMRUP (M), ASSAM.

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Advocate for the Petitioner : MS. P R MAHANTA, MR P UPADHYAY,MS. JYOTI CHETRY,MR. G K MEDHI

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Advocate for the Respondent : MR. M A SHEIKH, MR. M HOSSAIN

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Page No.# 2/7

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BEFORE HON'BLE MR. JUSTICE ROBIN PHUKAN

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ORDER

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07.01.2026

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Heard Mr. P. Upadhyay, learned counsel for the applicants and also heard Mr. M. Hossain, learned counsel for the opposite party.

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2. This interlocutory application is preferred by 5(five) applicants, namely, (i) Smt. Manju Kalita, (ii) Smt. Kanika Das @ Smt. Kanika Kalita Das, (iii) Smt. Niyoti Das @ Smt. Niyoti Kalita Das, (iv) Smt. Debajani Kalita @ Debajani Kalita Dutta and (v) Smt. Jyotshna Kalita @ Jyotsna Kalita Choudhury, who are the respondents in CRP(IO) No.12/2023 and the plaintiffs in Title Suit No.26/2017, for rejection of the CRP(IO) No.12/2023, filed under the provision of Article 227 of the Constitution of India, on the ground of maintainability, as the impugned order dated 15.12.2022, passed in Misc.(J) Case No.855/2022, arising out of Title Suit No.26/2017, by the learned Civil Judge (Sr. Division) No.3, Kamrup(M), Guwahati, under the provisions of Order XII Rule 6 read with Section 151 of the Code of Civil Procedure, is a judgment on admission and therefore, it is appealable under the provisions of Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure, 1908.

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3. Mr. Upadhyay, learned counsel for the applicants submits that the plaintiffs have instituted a title suit, being Title Suit No.26/2017, before the Court of learned Civil Judge (Sr. Division) No.3, Kamrup(M), Guwahati, for declaring right, title, interest and possession with regard to 1/6^th share, each of the plaintiffs over the suit land (ScheduleA) and for a decree, declaring that the plaintiff Nos.1 and 4 are entitled to peaceful possession and/or residence of the aforesaid RCC building in Schedule-'B', standing over the suit land (Schedule-A) and also for a decree declaring that the plaintiff No.4 is entitled to peaceful possession and/or residence of the aforesaid CI sheet pucca house (ScheduleC) and for a decree confirming the possession of the plaintiff Nos.1 and 4, in their aforesaid RCC building (Schedule-B) and a decree confirming the possession of the plaintiff No.4 in the CI sheet pucca house (Schedule-C) standing over the suit land

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Page No.# 3/7

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(Schedule-A) and for a preliminary decree for partition of the suit land (Schedule-A) amongst the plaintiffs and the defendants and for a final decree for partition of the suit land (Schedule-A) amongst the plaintiffs and the defendants by metes and bounds and delivery of khas and vacant possession of the respective shares to the plaintiffs.

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3.1 In the said title suit, the defendant No.1, who is the petitioner in CRP(IO) No.12/2023 and the opposite party herein this application, had filed written statement and in the said written statement she had admitted the statement made in paragraph Nos.4 and 9 of the plaint filed by the applicants herein and thereafter, the applicants herein had filed one petition, No.2271/2021, under Order XII Rule 6 of the CPC, before the learned Trial Court praying for judgment and decree on admission. In the said petition, the opposite party herein this application, had filed her written objection and thereafter, hearing both the parties upon the said Misc.(J) Case No.855/2022, the learned Trial Court vide order dated 15.12.2022, had passed the impugned order, considering the facts admitted by the opposite party in their pleadings as well as submission of learned counsel for both the parties and thereafter, the opposite party herein this application has preferred one civil revision petition, being CRP(IO) No.12/2023. But, Mr. Upadhyay submits that the said CRP(IO) is not maintainable in view of the fact that the impugned order was passed under the provision of Order XII Rule 6 read with Section 151 of the Code of Civil Procedure and the said order is a judgment on admission and therefore, an appeal will lie against the impugned order under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure and as such, the CRP(IO) No.12/2023 is not maintainable and therefore, it is contended to allow this application and to dismiss the CRP(IO) No.12/2023.

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4. Per contra, Mr. Hossain, learned counsel for the opposite party has vehemently opposed the application. Mr. Hossain has drawn the attention of this Court to sub-section (3) to Section 96 of the CPC and submits that no appeal shall lie from a decree passed by the Court with the consent of the parties. However, Mr. Hossain submits that though the learned Trial Court has reflected in the impugned order that he has consented in passing the impugned order, yet, he has never made any such submission before the learned Trial

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Court and after passing of the said order, he has raised objection before the learned Trial Court also. But, when a question was put to Mr. Hossain, learned counsel for the opposite party/defendant No.1, as to whether he had filed any application to that effect before the learned Trial Court, Mr. Hossain submits that he had not filed any application before the learned Trial Court raising his objection in the observation made by the learned Trial Court in the impugned order. He also submits that he has preferred the present civil revision petition against the impugned order and therefore, it is contended to dismiss the interlocutory application. In support of his submission, Mr. Hossain has relied upon a decision of Hon'ble Supreme Court in the case of Himani Alloys Limited v. Tata Steel Limited , reported in (2011) 15 SCC 273 .

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5. Having heard the submission of learned counsel for both the parties, this Court has gone through the application and the documents placed on record and also perused the impugned order dated 15.12.2022, passed in Misc.(J) Case No.855/2022, arising out of Title Suit No.26/2017.

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6. For better appreciation, the impugned order is reproduced herein below:-

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“ 15/12/2022

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Parties are represented.

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Learned counsel for the OPs/defendants has filed written objection. Heard both sides on petition no. 2271/21 under Order 12 Rule 6 CPC filed by the petitioners/plaintiffs praying for judgment and decree on admission.

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Also perused the written objection filed against the petition.

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The plaintiffs have filed the main suit for declaration, confirmation of possession, partition and permanent injunction. A meaningful reading of the rival pleadings of the parties discloses it is an admitted position that late Sashi Kalita@Kashi Kalita was the owner of the suit property and the parties to the suit are admittedly the legal heirs of the deceased owner. It is also not in dispute that the suit property is yet to be divided amongst the parties. Further, defendant no. 1 has also admitted that she has been collecting rent from the tenants of the suit land.

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Page No.# 5/7

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During hearing learned counsel for the OPs submitted that the O.P has no objection against the relief claimed by the petitioners for partition of the suit property in as much as the relationship between the parties and the nature of the suit property are not in dispute. Learned counsel for the petitioners submitted that if the OPs agree to partition the suit property and the parties get their entitled share, the petitioner shall not press for the other reliefs in the suit except partition.

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Considering facts admitted by the OPs in their pleadings as well as the submissions of learned counsel for both sides, I am of the opinion that this Court is in a position to pass a judgment on admission as far as partition of the suit property is concerned given that the petitioner is not pressing for the other reliefs. Accordingly, the petitioners' prayer for judgment on admission is allowed in terms of this order.

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The instant Misc(J) is allowed and disposed of on contest accordingly.”

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7. It appears that the learned Trial Court had passed the impugned order under Order XII Rule 6 of the CPC, on the petition No.2271/2021, filed by the plaintiffs for judgment and decree on admission. The learned Trial Court, having considered the statement and averment made in the written statement by the opposite party and also observing that a meaningful reading of the rival pleadings of the parties discloses that it is an admitted position that late Sashi Kalita @ Kashi Kalita was the owner of the suit property and the parties to the suit are admittedly the legal heirs of the deceased owner and it is also not in dispute that the suit property is yet to be divided amongst the parties. The learned Trial Court also found that the defendant No.1 has admitted that she has been collecting rent from the tenants of the suit land. It has also been observed that the learned counsel for the opposite party submitted that the opposite party has no objection against the relief claimed by the petitioner for partition of the suit property in as much as the relationship between the parties in the nature of suit property are not in dispute. And thereafter, the learned Trial Court has passed the judgment on admission and allowed the application.

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8. It is to be noted here that though the learned counsel for the opposite party submits that under sub-section (3) to Section 96 of the CPC, no appeal shall lie from the decree passed by the Court with the consent of the parties, yet, Mr. Upadhyay, learned

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counsel for the applicants has pointed out that the impugned order was not a consent order, but an order on admission passed under Order XII Rule 6 of the CPC.

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9. It is to be noted here that in the case of Smt. Shyamala Bai & Ors. v. Smt. Saraswathi Bai & Ors. , reported in 1996 ILR(Kar) 3091 , the Karnataka High Court has held that a reading of Order XII Rule 6 of the CPC and the plain language of this provision read with Section 2(2) CPC makes it clear that any order passed by the Trial Court allowing the plaintiffs claim either partly or fully on the basis of defendant's admission at any stage of the suit is a 'judgment' to be followed by a 'decree', either preliminary or final, and that it is not merely an interim order passed in the proceeding deciding the rights and obligations of the parties and therefore, there cannot be any dispute as to the legal position that any order passed under Order XII Rule 6 CPC by the Trial Court is a 'decree' within the meaning of Section 2(2) of the CPC.

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10. In view of the aforesaid position and also considering the facts and circumstances, this Court is of the view that the order passed by the learned Trial Court under Order XII Rule 6 of the CPC is a 'decree' within the meaning of Section 2(2) of the CPC and as such, appeal will lie under Section 96 read with Order XLI Rule 1 of the Code of Civil Procedure.

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11. This Court has considered the submission of Mr. Hossain, learned counsel for the opposite party and also gone through the decision in Himani Alloys Limited (supra) , referred by him. But, in the given factual and legal matrix, this Court is unable to record concurrence with his submission. Though it is provided in sub-section (3) of Section 96 of the CPC that no appeal shall lie from a decree passed by the Court with the consent of the parties, yet, consent decree is passed under Order XXIII Rule 3 of the CPC, which arises from a valid, lawful compromise between the parties recording mutual agreement on the suit claims, which bind both the parties as a contract, but gains decree enforceability distinct from unilateral admission. It demands bilateral consent not mere acknowledgment by one side unlike judgment on admission, whereas judgment on admission is passed under Order XII Rule 6 CPC, which allows the Court to pronounce judgment at any suit stage upon clear admission (oral, written or in pleadings) without

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awaiting full trial. Thus, a decree follows such judgment immediately, which may be preliminary or final, but requires unequivocal admission and the Court exercises its discretion while passing a judgment on admission. Under the given facts and circumstances, this Court is of the view that the ratio laid down in the case law, referred by him, would not advance his argument.

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12. In the result, this Court finds sufficient merit in this application and accordingly, the same stands allowed. The civil revision petition, preferred by the opposite party is liable to be dismissed and accordingly, the same stands dismissed, being not maintainable. However, liberty will remain with the petitioner to avail appropriate remedy as provided under the law.

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Sd/- Robin Phukan JUDGE

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Comparing Assistant

Manju Kalita and 4 Ors. v. Robita Barman@Robita Barman Kalita

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Manju Kalita and 4 Ors. v. Robita Barman@Robita Barman Kalita

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