On The Death Of Abdul Rouf Borbhuiya vs On The Death Of Ibrahim Ali Borbhuiya on 18 May, 2026

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    Gauhati High Court

    On The Death Of Abdul Rouf Borbhuiya vs On The Death Of Ibrahim Ali Borbhuiya on 18 May, 2026

    Author: Kalyan Rai Surana

    Bench: Kalyan Rai Surana

                                                                 Page No.# 1/18
    
    GAHC010203202024
    
    
    
    
                                                            2026:GAU-AS:6866
    
                          THE GAUHATI HIGH COURT
      (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
    
                            Case No. : CRP(IO)/458/2024
    
             ON THE DEATH OF ABDUL ROUF BORBHUIYA, HIS LEGAL HEIRS AND
             ORS
             NAMELY
    
             1.1: MD. MOIZ UDDIN BORBHUIYA
              S/O LATE ABDUL ROUF BORBHUIYA
              R/O VILL- BOWARGHAT PART-I
              PORGONAH HAILAKANDI
              P.O.-BOWARGHAT-788164
              DIST-HAILAKANDI
             ASSAM
    
             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
    
             1.3: MD. JAMAL UDDIN BORBHUIYA
              S/O LATE ABDUL ROUF BORBHUIYA
              R/O VILL- BOWARGHAT PART-I
              PORGONAH HAILAKANDI
              P.O.-BOWARGHAT-788164
              DIST-HAILAKANDI
             ASSAM
    
             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
                                                   Page No.# 2/18
    
    ASSAM
    
    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
    
    4.3: MD. SAKKID AHMED BORBHUIYA
     S/O LATE ANAM UDDIN BORBHUIYA
                                                          Page No.# 3/18
    
    R/O VILL- BOWARGHAT PART-I
    PORGONAH HAILAKANDI
    P.O.-BOWARGHAT-788164
    DIST-HAILAKANDI
    ASSAM
    
    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
    
    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
    
    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
    
    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
    
    VERSUS
    
    ON THE DEATH OF IBRAHIM ALI BORBHUIYA, HIS LEGAL HEIRS AND
    ORS.
    NAMELY
    
    1.1:ON THE DEATH OF ATIQUR RAHMAN BORBHUIYA
     HIS LEGAL HEIRS
     NA
                                            Page No.# 4/18
    
    1.1.1:Fateha Begum Barbhuiya
    Wife of Late Atiqur Rahman Borbhuiya
    
    1.1.2:Nasrin Sultana Barbhuiya
     D/O Late Atiqur Rahman Borbhuiya
    
    1.1.3:Azimun Nessa Barbhuiya
     D/O Late Atiqur Rahman Borbhuiya
    
    1.1.4:Nasim Uddin Barbhuiya
     S/O Late Atiqur Rahman Borbhuiya
    All residents of village Borbond
     P.O. Borbond
     District. Hailakandi
    
    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
    
    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
    
    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
    
    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
    
    1.6:MUSTT. JESMIN SULTANA BORBHUIYA
                                                Page No.# 5/18
    
    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
                                                      Page No.# 6/18
    
    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
    
    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
                                                                                           Page No.# 7/18
    
    
                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
    
                 S./O Late Faizul Haque Borbhuiya
    
                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
    
    Advocate for the Petitioner   : MR. N DHAR, MR B MALAKAR
    
    Advocate for the Respondent : MR. S ROY (FOR CAVEATOR), MR. M H LASKAR,M. HOSSAIN
    (FOR CAVEATOR),MR. M H LASKAR (FOR CAVEATOR)
                                                                            Page No.# 8/18
    
    
    
    
                                    BEFORE
                    HONOURABLE MR. JUSTICE KALYAN RAI SURANA
    
                                         ORDER
    

    Date : 18.05.2026

    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.

    SPONSORED

    2. 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.

    3. 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.

    4. 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.

    Page No.# 9/18

    5. 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.

    6. 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:

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

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

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

    4. 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?

    Page No.# 10/18

    5. 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?

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

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

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

    Additional Issue No. 1:

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

    7. 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.

    8. 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.

    9. 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
    Page No.# 11/18

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

    10. 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.

    11. 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.

    12. 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.

    13. 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.

    Page No.# 12/18

    14. 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.

    15. 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.

    16. 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
    .

    17. 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
    Page No.# 13/18

    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.

    18. 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.

    “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).

    29. 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.

    30. 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.

    Page No.# 14/18

    37. 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.

    41. 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.”

    19. 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.

    Page No.# 15/18

    20. 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.

    21. 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.

    22. In this case, the plaintiffs have impleaded as many as 296 defendants
    and proforma defendants and in the plaint the shares of the various
    Page No.# 16/18

    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.

    “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.”

    23. 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
    Page No.# 17/18

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

    24. 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).

    25. 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.

    26. 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
    Page No.# 18/18

    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.

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

    28. 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.

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

    JUDGE

    Comparing Assistant



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