On the Death of Abdul Rouf Borbhuiya, His Legal Heirs and Ors. Vs on the Death of Ibrahim Ali Borbhuiya, His Legal Heirs and Ors.

1.2: MD. ALMOS UDDIN BORBHUIYA S/O LATE ABDUL ROUF BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-BOWARGHAT-788164 DIST-HAILAKANDI ASSAM

¶10

1.3: MD. JAMAL UDDIN BORBHUIYA

¶11

S/O LATE ABDUL ROUF BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-BOWARGHAT-788164 DIST-HAILAKANDI ASSAM

¶12

1.4: MD. KAMRUL ISLAM BORBHUIYA S/O LATE ABDUL ROUF BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-BOWARGHAT-788164 DIST-HAILAKANDI

¶13

Page No.# 2/18

¶14

ASSAM

¶15

1.5: MD. ABDUL MALIK BORBHUIYA S/O LATE ABDUL ROUF BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-BOWARGHAT-788164 DIST-HAILAKANDI ASSAM 2: MD. MASMAN ALI BORBHUIYA S/O LATE ABDUL HAQUE BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-BOWARGHAT-788164 DIST-HAILAKANDI ASSAM 3: MD. MAHIBUR RAHMAN BORBHUIYA S/O LATE ABDUL HAQUE BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-BOWARGHAT-788164 DIST-HAILAKANDI ASSAM 4: ON THE DEATH OF MD. ANAM UDDIN BORBHUIYA HIS LEGAL HEIRS NAMELY 4.1: MD. SHAMIM AHMED BORBHUIYA S/O LATE ANAM UDDIN BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-BOWARGHAT-788164 DIST-HAILAKANDI ASSAM 4.2: MD. AHMED RAZAL BORBHUIYA S/O LATE ANAM UDDIN BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-BOWARGHAT-788164 DIST-HAILAKANDI ASSAM

¶16

4.3: MD. SAKKID AHMED BORBHUIYA S/O LATE ANAM UDDIN BORBHUIYA

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¶18

R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-BOWARGHAT-788164 DIST-HAILAKANDI ASSAM

¶19

5: MD. ASKAR UDDIN BORBHUIYA S/O LATE ABDUL ADUD BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-BOWARGHAT-788164 DIST-HAILAKANDI ASSAM

¶20

6: MD. ZAKARIA BORBHUIYA S/O LATE ABDUL HYE BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-BOWARGHAT-788164 DIST-HAILAKANDI ASSAM

¶21

7: MD. SARIMUL ISLAM BORBHUIYA S/O LATE ABDUL HYE BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-BOWARGHAT-788164 DIST-HAILAKANDI ASSAM

¶22

8: MD. MOIZUL ISLAM BORBHUIYA S/O LATE ABDUL HYE BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-BOWARGHAT-788164 DIST-HAILAKANDI ASSA

¶23

VERSUS

¶24

ON THE DEATH OF IBRAHIM ALI BORBHUIYA, HIS LEGAL HEIRS AND ORS. NAMELY

¶25

1.1:ON THE DEATH OF ATIQUR RAHMAN BORBHUIYA HIS LEGAL HEIRS NA

¶26

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¶27

1.1.1:Fateha Begum Barbhuiya

¶28

Wife of Late Atiqur Rahman Borbhuiya

¶29

1.1.2:Nasrin Sultana Barbhuiya D/O Late Atiqur Rahman Borbhuiya

¶30

1.1.3:Azimun Nessa Barbhuiya D/O Late Atiqur Rahman Borbhuiya

¶31

1.1.4:Nasim Uddin Barbhuiya S/O Late Atiqur Rahman Borbhuiya All residents of village Borbond P.O. Borbond District. Hailakandi

¶32

1.2:MOKLISUR RAHMAN BORBHUIYA S/O LATE IBRAHIM ALI BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-HAILAKANDI DIST- HAILAKANDI ASSAM

¶33

1.3:SADIKUR RAHMAN BORBHUIYA S/O LATE IBRAHIM ALI BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-HAILAKANDI DIST- HAILAKANDI ASSAM

¶34

1.4:BONIAMIN RAHMAN BORBHUIYA S/O LATE IBRAHIM ALI BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-HAILAKANDI DIST- HAILAKANDI ASSAM

¶35

1.5:MEBUBUR RAHMAN BORBHUIYA S/O LATE IBRAHIM ALI BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-HAILAKANDI DIST- HAILAKANDI ASSAM

¶36

1.6:MUSTT. JESMIN SULTANA BORBHUIYA

¶37

Page No.# 5/18

¶38

D/O LATE IBRAHIM ALI BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-HAILAKANDI DIST- HAILAKANDI ASSAM 1.7:MUSTT. SAHANAJ BEGUM BORBHUIYA D/O LATE IBRAHIM ALI BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-HAILAKANDI DIST- HAILAKANDI ASSAM 1.8:MUSTT. TASMINA BEGUM BORBHUIYA D/O LATE IBRAHIM ALI BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-HAILAKANDI DIST- HAILAKANDI ASSAM 1.9:MUSTT MURSHIDA BEGUM BORBHUIYA D/O LATE IBRAHIM ALI BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-HAILAKANDI DIST- HAILAKANDI ASSAM 2:ON THE DEATH OF KHAIRUNNESSA BORBHUIYA HER LEGAL HIER NAZIRA BEGUM D/O KAHIRUNNESSA BORBHUIYA R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-HAILAKANDI DIST- HAILAKANDI ASSAM 3:ON THE DEATH OF FIROZA BEGUM HER LEGAL HEIRS NAMELY 3.1:ATABUR RAHMAN BORBHUIYA S/O LATE FIROZA BEGUM

¶39

Page No.# 6/18

¶40

R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-HAILAKANDI DIST- HAILAKANDI ASSAM 3.2:AJIJUR RAHMAN BORBHUIYA S/O LATE FIROZA BEGUM R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-HAILAKANDI DIST- HAILAKANDI ASSAM

¶41

3.3:NAZIM UDDIN BORBHUIYA S/O LATE FIROZA BEGUM R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-HAILAKANDI DIST- HAILAKANDI ASSAM 3.4:FORIZ UDDIN BORBHUIYA S/O LATE FIROZA BEGUM R/O VILL- BOWARGHAT PART-I PORGONAH HAILAKANDI P.O.-HAILAKANDI DIST- HAILAKANDI ASSAM 5:ON THE DEATH OF MONOJA BEGUM HER LEGAL HEIRS NA 5.1:Badrul Haque Barbhuiya S/O late Monoja Begum Village Bowarghat Part-I Porogona Hailakandi PO- Bowarghat District Hailakandi 788164 Assam 5.2:Taizul Haque Barbhuiya S/O Late Monoja Begum Village Bowarghat Part-I

¶42

Page No.# 7/18

¶43

Porogona Hailakandi 788164 Assam 5.3:Nurun Nessa D/O Late Monoja Begum Village Borbond PO. Borbond District. Hailakandi 7:Ayurun Nessa Borbhuiya D/O late Faizul Haque Borbhuiya village Bowarghat Part-I Progona Hailakandi PO. bowarghat District Hailakandi 788164 Assam 8:Sakirul Islam Borbhuiya

¶44

S./O Late Faizul Haque Borbhuiya

¶45

village Bowarghat part-I Porogona Hailakandi PO Bowarghat District Hailakandi 788164 Assam 9:Basirul Islam Borbhuiya S/O late Faizul Islam Borbhuiya village Bowarghat Part-I Porogona Hailakandi PO. Bowarghat District Hailakandi 788164 Assam Respondent No. 6 To 8 all are legal heirs of Late Faizul Islam Borbhuiy

¶46

Advocate for the Petitioner : MR. N DHAR, MR B MALAKAR

¶47

Advocate for the Respondent : MR. S ROY (FOR CAVEATOR), MR. M H LASKAR,M. HOSSAIN (FOR CAVEATOR),MR. M H LASKAR (FOR CAVEATOR)

¶48

Page No.# 8/18

¶49

BEFORE HONOURABLE MR. JUSTICE KALYAN RAI SURANA

¶50

ORDER

¶51

Date : 18.05.2026

¶52

Heard Mr. N. Dhar, learned counsel for the petitioners. Also heard Mr. P.K. Roy Choudhury, learned senior counsel, assisted by Mr. M.H. Laskar, learned counsel for the respondents.

¶53

The petitioners are substituted petitioners nos. 2 to 8. In respect of the substituted petitioner no. 1, it is presumed that they are the legal representatives of defendant No. 10. However, as per the plaint, defendant No. 10 is Mohammad Abdul Rouf and not Mohammad Abdul Rouf Borbhuiyan.

¶54

By filing this application under Article 227 of the Constitution of India, the petitioners have assailed the order dated 10.07.2024, passed by the learned Additional District Judge, Hailakandi, in Misc (J) Case No. 13 of 2024, arising in T.A. No. 3 of 2022. By the said order, notwithstanding the objection as to the non-joinder of necessary parties, the plaintiffs/substituted plaintiffs were allowed to lead additional evidence as contemplated under Order XLI Rule 27(b) of the CPC.

¶55

The learned counsel for the petitioners has submitted that as the suit was dismissed on the ground of non-joinder of necessary parties and the said objection was taken again in the first appellate stage, the learned First Appellate Court, instead of deciding the preliminary issue, allowed additional evidence to be recorded, which is stated to be not in accordance with law.

¶56

Page No.# 9/18

¶57

It is further submitted that the suit was decreed and thereupon the petitioners made a challenge before this Court and this Court by judgment passed in RFA 87 of 2003, apart from other issues, directed that a further issue as to whether the plaintiffs' suit was maintainable in its present form be framed and the entire suit be decided again. Accordingly, on remand, the proceedings of Title Suit No. 13 of 1997 was decided afresh by judgment and order dated 05.09.2016, inter alia, dismissing the suit as certain persons were not joined as defendants though they were co-sharers to the suit land.

¶58

Accordingly, in paragraph 6 of the judgment passed by the learned trial Court, it was observed that in the present suit, Abdul Rashid and Abdul Bari Barbhuiya, who were brothers and concerned with 20B-7K-10G land (Ext.6), and Saibur Rahman Borbhuiya and Sofia Begum were not parties to the suit and they were co-sharers of the suit land. Accordingly, they were held to be necessary parties to the suit, which was held to be fatal. Accordingly, it was held that it would be wrong to assess at this juncture that the plaintiffs have acquired any right, title and interest over the land of suit pattas and by holding that preliminary decree under Order XX Rule 18 CPC needs to be specific not only to the share of the plaintiffs but also to the share of other co-sharers and accordingly, answering the additional issue in the negative, the Court dismissed the suit for partition. It may be mentioned that the issues framed in the said suit were as follows:

¶59

Whether there is a cause of action for the plaintiffs’ suit?”

¶60

Whether the suit is barred by the law of adverse possession?”

¶61

Whether the suit is bad for mis-joinder and non-joinder of necessary parties?

¶62

Whether the suit is barred by the law of res-judicata in view of the judgment passed by the Ld. Sub Judge, Cachar in T.S. No. 6/42 relating to the suit land?

¶63

Page No.# 10/18

¶64

Whether the plaintiff have acquired any right, title and interest on the land of suit pattas with the sale deed No. 2162 dated 14/05/26 and 3683 dated 03/04/52?

¶65

Whether the plaintiff have got right, title and interest over 32B 7K 14Ch 9Go 3Ko 2Kr of land?

¶66

Whether the plaintiffs are entitled to get preliminary decree for partition of the suit land as prayed for?

¶67

To what other relief, if any, the plaintiffs are entitled under the law and equity?

¶68

Additional Issue No. 1:

¶69

Whether the plaintiff’s suit is maintainable in its present form?

¶70

In view of the nature of challenge made in this revision, it has not been necessary to discuss all the issues as decided by the learned trial Court.

¶71

In the proceedings against the decree of dismissal passed in the suit, initially RFA 63 of 2016 was preferred and in connection with the said appeal, an application was filed under Order XLI Rule 27 read with Section 151 CPC for allowing the applicants to adduce evidence to bring on record the specific shares of the contesting defendants and the same was registered as Misc (J) Case No. 13 of 2024 arising out of I.A. (Civil) 3379 of 2018 in RFA 63 of 2016.

¶72

This Court, by an order dated 17.09.2018, passed in the proceedings of RFA 63 of 2016, observed that the said application shall be considered at the stage of final hearing, allowing objection, if any, to be filed prior to the hearing of the connected appeal. In course of time, due to enlargement of pecuniary jurisdiction, the proceedings of RFA 63 of 2016 was transferred for disposal before the Court of Additional District Judge, Hailakandi, where it was registered as Title Appeal No. 3 of 2022. In connection with the said appeal, an application

¶73

Page No.# 11/18

¶74

under Order XLI Rule 27, read with Section 151 CPC, was filed which was registered as Misc. (J) Case No. 13 of 2024.

¶75

It may be stated that in support of the contention that the preliminary issues were required to be decided first, the learned counsel for the petitioner has cited the case of Kanakarathnammal v. Loganatha Mudaliar & Anr., AIR 1965 SC 271, decided by the Constitution Bench of the Supreme Court of India and the case of Abdul Rahman v. Prasony Bai & Anr., (2003) 1 SCC 488.

¶76

In paragraph 15 of the decision of the case of Kanakarathnammal (supra), it has been held that ordinarily a suit shall not be defeated by reason of misjoinder or non-joinder of parties, but in the said case, the appellant despite being informed that his brothers were not made parties to the suit, persisted in the proceedings and accordingly it was held that the appellant before the Supreme Court of India had taken a risk and it was too late to allow him to rectify the mistake as he had ample opportunities to remedy his defect.

¶77

In paragraph 21 of the case of Abdul Rahman (supra), it has been held that a suit can be disposed of on preliminary issues. Accordingly, it is submitted that as non-joinder of necessary parties led to issues of maintainability of the suit, the appeal being an extension of suit ought to have been decided on preliminary issues first.

¶78

As regards the issue of additional evidence under Order XLI Rule 27 of the CPC before the First Appellate Court, the learned counsel for the petitioner has cited the case of Sanjay Kumar Singh v. State of Jharkhand, (2022) 7 SCC 247 and Nawab Burul Islam & Ors., v. Khagaru Sekh & Ors., (1991) 2 GLR 153.

¶79

Page No.# 12/18

¶80

In the case of Sanjay Kumar Singh (supra), it was held that ordinarily the Court cannot take any evidence in appeal and the exception is Order XLI Rule 27 CPC which enables the Appellate Court to take additional evidence in exceptional circumstances and also held that one of the circumstances in which the production of additional evidence under Order XLI Rule 27 CPC by the Appellate Court is to be considered is whether or not the Appellate Court requires the additional evidence so as to enable it to pronounce judgment or any other substantial cause of a like nature.

¶81

In the case of Nawab Burul Islam (supra), it has been held that in a series of decisions of the Privy Council and the Supreme Court of India, it has been settled that additional evidence should not be permitted at the appellate stage in order to enable one of the parties to remove certain lacuna in presenting its case at a proper stage and to fill in gaps.

¶82

Per contra, the learned senior counsel for the respondent has submitted that in the application for additional evidence, only the share of the respective co-pattadars was identified which is only explanatory in nature and therefore, there was no perversity on the part of the learned first Appellate Court to allow recording of the additional evidence under Order XLI Rule 27 CPC.

¶83

In the considered opinion of this Court, the law relating to additional evidence under Order XLI Rule 27 CPC has been laid down in the case of Union of India vs. Ibrahim Uddin & Anr., (2012) 8 SCC 148 : (2012) 0 Supreme (SC) 465. In the said case, it has been laid down that as an exception to the normal rule, the provision of Order XLI Rule 27 empowers the appellate Court to allow a

¶84

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¶85

document to be produced and witness to be examined, providing that fresh evidence cannot be introduced under this provision at the appellate stage, and if the evidence available on record is sufficient for judgment, the provision of Order XLI Rule 27 cannot be resorted to.

¶86

The conditions that exist for invoking Order XLI Rule 27 CPC have also been laid down by holding that only if the appellate Court requires additional evidence or where the evidence taken by the trial Court is so imperfect that a satisfactory judgment cannot be passed on that basis, such evidence can be recorded if additional evidence is required to be taken on record in order to pronounce the judgment or for any other substantial cause.

¶87

“28. It is not the business of the Appellate Court to supplement the evidence adduced by one party or the other in the lower Court. Hence, in the absence of satisfactory reasons for the nonproduction of the evidence in the trial court, additional evidence should not be admitted in appeal as a party guilty of remissness in the lower court is not entitled to the indulgence of being allowed to give further evidence under this rule. So a party who had ample opportunity to produce certain evidence in the lower court but failed to do so or elected not to do so, cannot have it admitted in appeal. (Vide: State of U.P. v. Manbodhan Lal Srivastava, AIR 1957 SC 912; and S. Rajagopal v. C.M. Armugam & Ors., AIR 1969 SC 101).

¶88

The inadvertence of the party or his inability to understand the legal issues involved or the wrong advice of a pleader or the negligence of a pleader or that the party did not realise the importance of a document does not constitute a "substantial cause" within the meaning of this rule. The mere fact that certain evidence is important, is not in itself a sufficient ground for admitting that evidence in appeal.

¶89

The words "for any other substantial cause" must be read with the word "requires" in the beginning of sentence, so that it is only where, for any other substantial cause, the Appellate Court requires additional evidence, that this rule will apply, e.g., when evidence has been taken by the lower Court so imperfectly that the Appellate Court cannot pass a satisfactory judgment.

¶90

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¶91

To sum up on the issue, it may be held that application for taking additional evidence on record at a belated stage cannot be filed as a matter of right. The court can consider such an application with circumspection, provided it is covered under either of the prerequisite condition incorporated in the statutory provisions itself. The discretion is to be exercised by the court judicially taking into consideration the relevance of the document in respect of the issues involved in the case and the circumstances under which such an evidence could not be led in the court below and as to whether the applicant had prosecuted his case before the court below diligently and as to whether such evidence is required to pronounce the judgment by the appellate court. In case the court comes to the conclusion that the application filed comes within the four corners of the statutory provisions itself, the evidence may be taken on record, however, the court must record reasons as on what basis such an application has been allowed. However, the application should not be moved at a belated stage.

¶92

Thus, from the above, it is crystal clear that application for taking additional evidence on record at an appellate stage, even if filed during the pendency of the appeal, is to be heard at the time of final hearing of the appeal at a stage when after appreciating the evidence on record, the court reaches the conclusion that additional evidence was required to be taken on record in order to pronounce the judgment or for any other substantial cause. In case, application for taking additional evidence on record has been considered and allowed prior to the hearing of the appeal, the order being a product of total and complete non-application of mind, as to whether such evidence is required to be taken on record to pronounce the judgment or not, remains inconsequential/inexecutable and is liable to be ignored.”

¶93

Accordingly, in the considered opinion of the Court, in order to find out whether additional evidence could have been permitted by the learned First Appellate Court in view of the ratio laid down in the case of Union of India vs. Ibrahim Uddin (supra), the learned First Appellate Court, while deciding the appeal, ought to have arrived at a conclusion that the additional evidence would be required in order to pronounce the judgment and only on recording such satisfaction, the additional evidence within the meaning of Order XLI Rule 27 CPC could have been ordered.

¶94

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¶95

This Court, in its order dated 17.09.2018, passed in RFA 63 of 2016, had considered the application made under Order XLI Rule 27, read with Section 151 CPC, to adduce additional evidence. However, this Court had deferred the application for consideration at the stage of the final hearing.

¶96

In the proceedings of Title Appeal No. 3 of 2024 there is nothing on record to show that there were any other steps to be taken in the said appeal and as the appeal that was on board before the learned Additional District Judge, was ready for hearing and the learned first appellate Court, gave its reasons to allow introduction of additional evidence on the ground that the learned trial Court had dismissed the suit, amongst others, on the ground that the plaintiffs had failed to mention the specific share of the defendants/ respondents by providing the dag and the patta number as contemplated under Order XX Rule 13 CPC, and having noticed that the plaintiffs have been fighting in the Court for the last 27 years for a minor defect they were being deprived of any concrete decision from the Courts of law and therefore, by holding that by the intended additional evidence, the plaintiffs are not going to introduce any new fact or evidence or new claim, it was held that the plaintiffs proposing to furnish specific shares of the defendants/ respondents will assist the Court in passing the judgment finally so that neither party will be prejudiced in any manner and the dispute could be resolved finally. Accordingly, in view of the ratio laid down in the case of Ibrahim Uddin (supra), the learned First Appellate Court was within its power and authority to admit the application under Order XLI Rule 27 for hearing.

¶97

In this case, the plaintiffs have impleaded as many as 296 defendants and proforma defendants and in the plaint the shares of the various

¶98

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¶99

shareholders are mentioned. Therefore, the petition for additional evidence under Order XLI Rule 27 cannot be said to be an application to bring on record any evidence which was hitherto not available before the learned trial Court as it is only proposed to delineate the shares of various land holders. Therefore, the order of the learned First Appellate Court cannot be held to be bad in view of the findings recorded in the case of Sanjay Kumar Singh (supra), cited by the learned counsel for the petitioner. Paragraph 7, on which reliance is placed, is extracted below.

¶100

“ 7. It is true that the general principle is that the appellate court should not travel outside the record of the lower court and cannot take any evidence in appeal. However, as an exception, Order 41 Rule 27 CPC enables the appellate court to take additional evidence in exceptional circumstances. It may also be true that the appellate court may permit additional evidence if the conditions laid down in this Rule are found to exist and the parties are not entitled, as of right, to the admission of such evidence. However, at the same time, where the additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue in the suit and interest of justice clearly renders it imperative that it may be allowed to be permitted on record, such application may be allowed. Even, one of the circumstances in which the production of additional evidence under Order 41 Rule 27 CPC by the appellate court is to be considered is, whether or not the appellate court requires the additional evidence so as to enable it to pronounce judgment or for any other substantial cause of like nature.”

¶101

From the above observations of the Supreme Court of India, it is noted that where additional evidence sought to be adduced removes the cloud of doubt over the case and the evidence has a direct and important bearing on the main issue of the suit, the interest of justice clearly renders it imperative that it may be allowed to be permitted on record. Therefore, in the present case in hand, as only clarificatory evidence is sought to be introduced to determine the shares of various shareholders of the land, the same appears to be permissible

¶102

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¶103

in light of the case of Sanjay Kumar Singh (supra) cited by the learned counsel for the petitioner.

¶104

In the case of Kanakarathnammal (supra), a probate of a will was obtained and in the suit filed, the concerned respondent Nos. 1 and 2 had set up a title in respect of the suit properties. However, the brothers were not joined in the suit, and therefore, it was held that the suit was not maintainable for non-joinder of necessary parties. The appellant’s claim was rejected because she had failed to implead her two brothers in the suit and there were only three legal claimants to the said property. In this case, though 297 defendants were made defendants, by an additional evidence sought to be projected that all the necessary parties who had interest in the suit land were joined. Therefore, the application which has been allowed in this case is not found to be contrary to the ratio laid down in the case of Kanakarathnammal (supra).

¶105

Coming to the case of Abdul Rahman (supra), the said decision is on the point that when a suit can be disposed of on a preliminary issues, and it was held that ordinarily suit should be decided on preliminary issues.

¶106

In the suit, all the evidence was before the learned trial Court and therefore, all the eight issues and the additional issue No. 1 were decided on merit. Therefore, in the considered opinion of the Court, this principle of deciding an appeal on preliminary issues did not arise under the facts and circumstances of the present case, as the issue which is being raised is whether the suit and the appeal was bad for non-joinder of necessary parties. The learned first appellate Court arrived at a finding that the additional evidence to that effect would bring clarity on the point. Therefore, as the learned first

¶107

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¶108

appellate Court had recorded its satisfaction for allowing the additional evidence to be brought under Order XLI Rule 27, this Court would be slow in exercising jurisdiction under Article 227 of the Constitution of India to substitute its view over the considered decision of the learned First Appellate Court.

¶109

Resultantly, this revision fails and the same is dismissed. Parties are left to bear their own costs.

¶110

Both appearing parties, who are duly represented by their respective learned counsel shall appear before the learned Addl. District Judge, Hailakandi on the next date fixed. However, if no date has been fixed or if the proceedings of T.A. No. 3/2012 has been stayed, then the parties shall appear on 05.06.2026, and by producing a certified copy of this order, shall act in accordance with any order that may be passed by the said learned Court.

¶111

The Registry shall also transmit a copy of this order by email to the learned Addl. District Judge, Hailakandi for record.

¶112

JUDGE

¶113

Comparing Assistant

On the Death of Abdul Rouf Borbhuiya, His Legal Heirs and Ors. v. on the Death of Ibrahim Ali Borbhuiya, His Legal Heirs and Ors.

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On the Death of Abdul Rouf Borbhuiya, His Legal Heirs and Ors. v. on the Death of Ibrahim Ali Borbhuiya, His Legal Heirs and Ors.

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