IN THE HIGH COURT AT CALCUTTA

CIVIL REVISIONAL JURISDICTION

APPELLATE SIDE

Present:

The Hon’ble Justice Md. Shabbar Rashidi

CO 4341 of 2023

Sahanaj Begum and Others

Vs.

Md. Sajid and Others

With

CO 115 of 2025

Md. Sajid @ Sajid Mohamma d and Others

Vs.

Sahanaj Begum and Others

For the Petitioners in : Mr. Partha Sarathi Bhattacharyya, Sr. Adv.

C.O. 4341 of 2023 and Mr. Raju Bhattacharyya, Adv.

for the Opposite Party Nos.

1-8 in C.O. 115 of 2025

For the Petitioners in : Mr. Pritam Chowdhury, Adv.

C.O. 115 of 2025 and Mr. M. Nazar Chowdhury, Adv.

for the respondents in Mr. Farheen Riaz, Adv.

C.O. 4341 of 2023 Mr. Yusuf Hassan, Adv.

Heard on : 21.09.2026

Judgment on : 08.10.2026

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Md. Shabbar Rashidi, J.:-

1. Two revisional applications are taken up together as they

emanate from the same impugned order.

2. The instant revisional applications are filed in assailment of

the Order No. 191 dated October 11, 2023 passed by the learned Civil

Judge, Senior Division, Islampur, Uttar Dinajpur in Partition Suit No.

36 of 2005.

3. By the impugned order the learned Civil Judge, Senior

Division, allowed the petition under Section 151 of the Code of Civil

Procedure filed by the defendants Nos. 35 to 38 and directed the

defendants to bring an order from correct forum to enable a judicious

decision to the matters as agitated by January 11, 2024.

4. Facts giving rise to the instant proceeding is that a suit for

partition and separation of shares in respect of joint properties being

Partition Suit No. 36 of 2005 was filed before the Court of the learned

Civil Judge, Senior Division, Islampore, Uttar Dinajpur by Ibrahim,

Kaizar Md. And Jainuddin, praying for partition of the suit property by

metes and bounds and permanent injunction.

5. A written statement was filed on behalf of defendant Nos. 35

to 38 denying all material allegations levelled by the plaintiffs.

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6. A judgment was passed on December 24, 2018 by the learned

Civil Judge, Senior Division, Islampore, Uttar Dinajpur in Partition

Suit No. 36 of 2005 that the plaintiffs have unity of title and are co-

sharers in respect of the suit property but no decree of partition can be

passed in favour of the plaintiffs in the absence of physical possession

of the property. The suit was dismissed on contes t against the

defendant Nos. 1 to 11, 13 and 15 to 21 and 35 to 38 and exparte

against the rest of the defendants.

7. Being aggrieved by the judgment and order, the petitioners

preferred an appeal being F.A.T. No. 346 of 2019 before a Division

Bench of this Hon’ble Court. The said appeal was allowed by setting

aside the finding of the learned trial court. It was held that issue Nos.

5 and 6 decided by the learned trial court cannot be sustained and

that the parties are co-sharers in respect of a joint property and the

matter was remitted back to the learned trial court for determining the

shares on the basis of such findings and observation was made by the

Hon’ble Division Bench that the learned trial Judge would pass a

preliminary decree on the basis of findings recorded in issues Nos. 3

and 4 within four weeks from the date of communication of the order.

8. It was argued by the learned advocate for the plaintiffs that

the issue with regard to right and title of the parties over the suit

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properties was decided by the learned trial court and subsequently

affirmed in the appeal. Such issue cannot be allowed to be reopened in

the name of discovery of new facts. It was submitted that the scope of

the suit post remand was limited to determination of respective shares

of the parties to be declared in the form of a preliminary decree. To

such proposition, learned advocate for the plaintiff relied upon 2026

SCC OnLine Del 5420 (Brij Lal & Sons v. Delhi Development

Authority), (2001) 3 Supreme Court Cases 1 (Bipin Shantilas

Panchal v. State of Gujrat and Another) and 2008 SCC OnLine

1017 (Hemendra Rasiklal Ghia v. Subodh Mody) .

9. Learned advocate for the plaintiffs further submitted that the

death certificate of Dilbahar was duly proved at the trial. The

defendants neither challenged such document at the time of trial nor

there was any cross examination on the part of the defendants

touching upon its genuineness. The defendants cannot challenge the

same at a subsequent time. In support of his contention, learned

advocate for the plaintiff placed reliance upon (2003) 8 Supreme

Court Cases 752 (R.V.E. Vendatachala Gounder v. Arulmigu

Viswesaraswami & V.P. Temple and Another) .

10. On the other hand, learned senior advocate for the defendant

submitted that by producing the alleged death certificate of Dilbahar,

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the plaintiff has practiced fraud upon the learned trial court. He

further submits that an objection with regard to fraud can be raised at

any time. Even a stale challenge alleging fraud is required to be

adjudicated. In support of his contention, learned senior advocate

relied upon (1994) 1 Supreme Court Cases 1 (S.P. Cheengalvaraya

Naidu v. Jagannath and Others) and (2005) 4 Supreme Court

Cases 605 (MCD v. State of Delhi and Another).

11. Learned senior advocate for the defendants also submitted

that the learned trial court had ample powers under Section 151 of the

Civil Procedure Code, 1908 to decide the issue raised before it which

the learned court, by the impugned order, erroneously relegated the

defendants to bring an order from the appropriate forum.

12. The suit property as delineated in the schedule of the plaint

was originally owned by Dilbahar, Ful Md., Nanadamoi Bibi, Sk.

Soleman and Sk. Meherdi.

13. The case made out by the plaintiffs was that the plaintiffs had

inherited the suit property from Dilbahar and the contention of the

defendants was that Dilbahar had transferred his entire shares in the

suit property by dint of two Deeds of Conveyance to some of his co-

sharers and some outsiders in the year 1972.

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14. The defendants further contended that the plaintiffs being the

heirs of Dilbahar had no interest left, over any portion of the suit

property and so the defendants prayed for dismissal of the suit.

15. The petitioners stated that issues were framed, evidences were

adduced by the parties to the suit, the original death certificate of

Dilbahar, the predecessor-in-interest of the plaintiffs in the suit were

marked as exhibit 2 filed by the plaintiffs, suggesting that Dilbahar

had died on 17.07.1968 at the age of 82 years.

16. The petitioners state that defendant Nos. 36 to 38 in Partition

Suit No. 36 of 2005 had filed an application dated 31.03.2022 under

Section 151 of the Code of Civil Procedure before the learned trial

court alleging that the plaintiffs have fraudulently tried to establish

before the learned trial court that the Registered Deeds Nos. 9917

dated 10.06.1969, 6173 dated 29.04.1972 and Registered Deed dated

04.07.1972 by which the entire share of the suit property of Dilbahar

was transferred in favour of different purchasers are fraudulent, the

executant being dead on the date of execution of the said deeds.

However, the death certificate produced in original by the plaintiffs and

marked as exhibit 2, suggests that Dilbahar had died on 17.07.1968 at

the age of 82 years, such being the case, purported deeds dated

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10.06.1969 and 29.04.1972 so exhibited by the defendants could not

have been executed by a dead person.

17. The learned trial court while deciding issues Nos. 3 and 4

came to a conclusion that, since the original death certificate of

Dilbahar was admitted in evidence without any objection from the

defendants, so the death of Dilbahar could be taken as 17.07.1968

and when the executor of the deeds was dead at the time of execution

then the irresistible conclusion was that the deeds dated 10.06.1969

and 29.04.1972 were void and not binding on the plaintiffs and so the

plaintiffs and the defendants were co-sharers in respect of the suit

property having unity of possession among themselves.

18. While deciding issues Nos. 5 and 6, the learned trial court in

the judgment dated December 24, 2018, passed in Partition Suit No.

36 of 2005 observed that although the plaintiffs have unity of title and

are co-sharers in respect of the suit property but in absence of

physical possession of the property, no decree of partition can be

passed in their favour.

19. Being aggrieved by the judgment and order, the petitioners

preferred an appeal being F.A.T. No. 346 of 2019 before a Division

Bench of this Hon’ble Court. By an order dated October 8, 2021, the

learned Division Bench decided the appeal on issue Nos. 3 and 4 and 5

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and 6. The appeal being F.A.T. No. 346 of 2019 was allowed by the

learned Division Bench by setting aside the finding of the learned trial

court. It was held that issue Nos. 5 and 6 decided by the learned trial

court cannot be sustained and that the parties are co -sharers in

respect of a joint property and the matter was remitted back to the

learned trial court for determining the shares on the basis of such

findings. An observation was made by the Hon’ble Division Bench that

the learned trial Judge would pass a preliminary decree on the basis of

findings recorded in issues Nos. 3 and 4 within four weeks from the

date of communication of the order dated October 8, 2021.

20. The defendant Nos. 36 to 38 in Partition Suit No. 36 of 2005

had filed an application dated 31.03.2022 under Section 151 of the

Code of Civil Procedure before the learned trial court by which it was

contended that in between the judgment and decree of dismissal dated

December 12, 2018, and the order of remand dated October 8, 2021,

passed by the Hon’ble Division Bench of this High Court, defendant

Nos. 36 to 38 have discovered such documents which would show that

the plaintiffs have fraudulently tried to establish before the learned

trial court that the Registered Deeds Nos. 9917 dated 10.06.1969,

6173 dated 29.04.1972 and Registered Deed dated 04.07.1972 by

which the entire share of the suit property of Dilbahar was transferred

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in favour of different purchasers are fraudulent, the executant being

dead on the date of execution of the said deeds.

21. The defendants further contended in their application that the

entire exercise adopted by the plaintiffs was fraud as the document

discovered and certified copy obtained on 19.01.2022 by the defendant

No. 37 being the Deed No. 19202 dated 30.10.1968, shows that the

wife of the executants of the Exhibit No. A, A/1, A/2 transferred lands

to one Mossammat, Tegh ni Nissa wherein, the executant was

described as the wife of Dilbahar, who was then shown, as alive and

present, and that the thumb impression of Samiran Nissa (wife of

Dilbahar), on such deed stood identified by her husband Dilbahar.

22. The defendants further contended that Exhibit A/1 also

contained signature of the son of the executants who was the plaintiff

in the said suit being Partition Suit No. 36 of 2005. Therefore the

defendant Nos. 36 to 38 had prayed for amendment of their written

statement to introduce the plea of fraud and sought to lead evidence to

bring on record the Deed No. 19202 dated 30.10.1968 on the framing

of specific issue of fraud.

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23. In deciding the Partition Suit No. 36 of 2005, the learned trial

court had framed various issues. For proper appreciation, the issues

framed in the suit are set out herein. Such issues were:

1. Whether the suit is maintainable in its present form and

prayer ?

2. Whether the plaintiffs have any cause of action to file the

suit ?

3. Whether the plaintiffs and the defendants are co-sharers

in respect of the schedule suit property ?

4. Whether there is any unity of title and possession

amongst the parties in respect of the suit property ?

5. Whether the plaintiffs are entitled to get any preliminary

decree as prayed for ?

6. Whether the plaintiffs are entitled to get any other relief

as prayed for ?

Decision of the learned trial court on issue nos. 3 to 6 is

germane for consideration in the present proceeding.

24. Issue nos. 3 and 4 were taken up together by the learned trial

court. The learned court decided such issues holding that the plaintiffs

and defendants were co-sharers in respect of the suit property and

they had unity of title and possession amongst themselves. Similarly,

issue nos. 5 and 6 were decided together. Such issues were decided to

the following terms, that’s to say:

“In the instant suit under discussion, the plaintiffs

admitted in evidence that they are dispossessed from the

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suit property prior to filing of the suit. The plaintiffs are

admittedly out of position then the natural course of the suit

would have been claim for the possession along with

division of shares. The plaintiffs by simply filing a partition

suit without any consequential relief of possession has let

themselves hit by the provisio of Section 34 where the

declaration of shares would be impaired without proper

consequential relief. It may be argued that the plaintiffs

should get the chance of amending the prayer for seeking

proper relief. It is not a case where the plaintiffs are not

sure of the physical possession or where the court

concluded on the basis of evidence about the possession of

the plaintiff but rather it is a clear-cut admonition of PW 1

that they are not in possession of the property for a long

time and even after having knowledge of such fact

refrained from seeking appropriate relief from the court.

Therefore, considering all the aspects, I am of the

opinion that although the plaintiffs have unity of title and

are co-sharers in respect of the suit property but in absence

of physical possession of the property, no decree of partition

can be passed in their favour.

Accordingly, the issues are answered in the negative.”

Consequently, the suit being Partition Suit No. 36 of 2005 was

dismissed.

25. We have noted hereinbefore that assailing the judgment and

decree passed in Partition Suit No. 36 of 2005, an appeal was carried

12

to this Hon’ble Court vide FAT 346 of 2019 which was disposed of by

an order passed on October 8, 2021. The said order reads as follows:

“We listed the matter today without adhering to the rules

applicable for preparation of an appeal for final disposal as

the point involved in the instant appeal appears to us a

pure question of law, which does not require a roving

enquiry into the facts nor the evidence. We decided to

dispense with all such formalities and invite the respective

Counsel to address us on a pivotal point emerged in the

instant appeal.

Before we proceed to formulate the points, it would be

apposite to adumbrate the salient facts which are more or

less undisputed and discernible from the impugned

judgment.

The plaintiffs/appellants filed a suit for partition and

separation of shares in respect of the joint properties. The

defendants/respondents appeared and took defence that

the plaintiffs have no right, title and interest of the joint

property having divested by the predecessors. It was

further contended that there is an anomaly in the death

certificate relied in the matter. The Trial Court, after

considering the documentary as well as the oral evidence

adduced by the respective parties, categorically decided

issue nos. 3 and 4 that deeds allegedly executed by the

predecessor is void, having seen the light of the day after

his death. The Court further held that the

plaintiffs/defendants are the co-sharers in respect of the

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suit property and there is a unity of possession among

themselves.

However, the issue nos. 5 and 6 took a front seat,

leading to the dismissal of the suit taking shelter to Section

34 of the Specific Relief Act. The Trial Court held that since

the plaintiffs are admittedly out of possession prior to the

institution of the suit, the suit is bad under Section 34 of the

Specific Relief Act, if the consequential relief pertaining to

the recovery of possession is not prayed for in the suit.

On the conspectus of the aforesaid undisputed facts, the

seminal point involved in the instant appeal pertains to the

applicability to Section 34 of the Specific Relief Act in

conjunction with the specific findings, returned while

answering the issue nos. 3 and 4, where the Trial Court

has held that the parties are co-sharers and there is a unity

of possession amongst themselves.

There is no ambiguity in our mind that the learned

Judge in the Trial Court has misconstrued and under the

misconception of the law, held that the suit for partition

simplicitor is bad and not maintainable unless the relief in

the form of possession is prayed for.

The fundamental principles underlining the concept of

partition leaves no room that the possession of a co-sharer

in the joint property is a possession on the basis of the

share held by him and on behalf of the other co-sharers,

unless there is a specific case of ouster being made out.

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We do not find any case of ouster having made out in

the written statement as it proceeded simplicitor on an

assertion that the predecessors of the plaintiffs, divested

the right, title and interest in respect of the joint property by

executing several deeds. The possession may be important

in other suits than the partition suit. The unique feature of

the partition suit is that there is no concept of plaintiff and

defendant as each party is a plaintiff defending and

asserting his share in the property. The moment, the Court

decided the important issue and held that there is a unity of

possession amongst the parties, the question of recovery of

possession automatically gets obliterated and a person who

is in possession is not required to claim a specific relief in

this regard. Even, otherwise, once the property is declared

to be a joint property of the parties to the suit, the

possession is irrelevant as such possession is in-built and

in-heard in the jointness and cannot be divorced or

segregated by claiming a specific relief.

Fundamentally, the moment the shares are declared in

the preliminary decree at the time of passing the final

decree, making the allotment, apropos the shares declared

therein, any co sharer who occupies the portion, thereof, in

excess of the share, is required to give up such possession.

Section 34 of the Specific Relief Act does not envisage

such aspect but its applicability is restricted to a case,

where mere declaration without the consequential relief

would render the decree, unworkable and/or inexecutable.

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In such perspective, Section 34 has to be seen and,

therefore, in our opinion, applicability of such provision in a

suit for partition is misplaced and there has been an

apparent misconception of the legislative intent underlining

the incorporation of such provision in the statute book.

Had it been a case, a person has filed a suit for

declaration without a further consequential relief relating to

the recovery of possession and in the event, it is found

during the trial that the plaintiff is out of possession, the

rigor of Section 34 may be attracted. However, in case of a

partition suit, the unity of possession, which is of varied

form, cannot be projected as a deterrent to the plaintiff in

claiming a separation of share in terms of the shares

declared in the preliminary decree. The possession may be

actual, physical, constructive, symbolical and depends

upon the facts of each case.

We do not delve to go deep into such aspect in

determining the nature of such possession for the simple

reason that the Trial Court has already held that there is a

unity of possession among the parties and the moment,

such possession is found, which may be constructive or

symbolical, there is no need for a separate prayer for

recovery of possession, solely on such ground. We do not

find that the issue nos. 5 and 6 decided by the Trial Court

can be sustained. Such findings are hereby set aside.

Since the Trial Court has held that the parties are co-

sharers in respect of a joint property, the matter is remitted

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back to the Trial Court for determining the share on the

basis of such finding.

We expect that the Learned Judge in the Trial Court

would pass a preliminary decree on the basis of th e

findings recorded in issue nos. 3 and 4 within four weeks

from the date of communication of the order in presence of

the parties or their respective counsels.

The appeal being FAT 346 of 2019 is allowed.”

25. It is explicit from the order passed in FAT 346 of 2019 that the

findings of the learned trial court in respect of issue nos. 3 and 4 in

the suit were upheld. The learned Appellate Court interfered with the

findings in relation to issue nos. 5 and 6 where the learned trial court

refused to grant preliminary decree in favour of plaintiffs on the

touchstone of Section 34 of Specific Relief Act, 1963. The learned

Appellate Court specifically laid down that Section 34 was not

applicable in a partition suit. On such determination, the Division

Bench directed the learned trial court to pass a preliminary decree on

the basis of the findings recorded in issue nos. 3 and 4. Therefore, the

suit was remanded to learned trial court only with regard to

determination of shares on the basis of its findings in respect of issue

nos. 3 and 4.

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26. A case has been made out on behalf of the defendants that the

plaintiffs in the title suit practiced fraud by producing the death

certificate of the original owner of the suit properties namely Dilbahar.

It was also contended that fraud can be pleaded at time and that fraud

vitiates everything. In S.P. Chengalvaraya Naidu (supra), it was

observed by the Hon’ble Supreme Court that,

“5. The High Court, in our view, fell into patent error. The

short question before the High Court was whether in the

facts and circumstances of this case, Jagannath obtained

the preliminary decree by playing fraud on the court. The

High Court, however, went haywire and made observations

which are wholly perverse. We do not agree with the High

Court that “there is no legal duty cast upon the plaintiff to

come to court with a true case and prove it by true

evidence”. The principle of “finality of litigation” cannot be

pressed to the extent of such an absurdity that it becomes

an engine of fraud in the hands of dishonest litigants. The

courts of law are meant for imparting justice between the

parties. One who comes to the court, must come with clean

hands. We are constrained to say that more often than not,

process of the court is being abused. Property-grabbers, tax-

evaders, bank-loan-dodgers and other unscrupulous

persons from all walks of life find the court-process a

convenient lever to retain the illegal gains indefinitely. We

have no hesitation to say that a person, who's case is

based on falsehood, has no right to approach the court. He

can be summarily thrown out at any stage of the litigation.”

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27. MCD (supra) was rendered in a situation when vital

documents are withheld. It laid down that a litigant who approaches

the court is bound to produce all documents which are relevant to the

litigation. There is no such situation obtaining in the facts of the

present case.

28. However, in the instant case, such death certificate was

proved at the trial without any objection from the side of the

defendants. Not only that, this issue of alleged fraud was raised during

trial of the partition suit and was extensively considered by the learned

trial court. The Learned trial court, while deciding issue nos. 3 and 4

noted that,

“In this suit, the defendants are claiming that Dilbahar

transferred his entire interest in the property by different

deeds in the year 1969 and 1972. By producing the

principal evidence of the original registered deeds, they

have discharged their onus and I am in a position to say

that the registered deeds are real as they are apparent

pictures of transfer made by Dilbahar. There is no question

of the transferable interest of Dilbahar as the title of

Dilbahar in respect of the suit property is admitted position

in the suit. When the defendants have produced the original

deeds and when this is the apparent state of affair then the

onus of proof swiftly shifts to the shoulder of the plaintiffs

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to show before the Court that the apparent is not the real

state of affair.

In order to discharge such onus, the plaintiffs relied on

the death certificate of Dilbahar from which it appears that

Dilbahar died at an age of 82 years and his date of death

is 17.07.1968. If Dilbahar died on 17.07.1968 then

automatically any deed allegedly executed by him in the

year 1969 or 1972 becomes questionable before the Court.

During argument of the suit, Ld. Advocate for the

defendants harped time and again that the death certificate

of Dilbahar as produced by the plaintiffs is a fictitious and

manufactured document on the ground that if Dilbahar died

in the year 1968 and if the Registration of Births and

Deaths Act came in the year 1969 then how the death was

registered in terms of appropriate rules.

It appears from the death certificate (Exbt.2) that such

certificate was issued on 06.03.1972 much before the filing

of the suit. It further appears from the record that the

second deed executed by Dilbahar on 29.04.1972 i.e., even

after the issuance of the death certificate.

It is not the law as envisaged in the Registration of

Births and Deaths Act, 1969 that any birth or death that

took place prior to the promulgation of the Act cannot be

subsequently registered. On the contrary, it is mandate of

the law that even for births and deaths that has happened

prior to the Act can be registered by applying Section 13 of

the Act or the other rules framed under the Act. Thus, I find

no force in the argument of defence that if the death took

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place in the year 1968 then how it can be registered by

under an Act which came into force in the year 1969.

It may be a question that date of death is altered by the

intending parties in order to gain some proprietary rights

and there is some mal practice in getting the death

certificate. This probability would have been a possibility if

the death certificate of Dilbahar was obtained by the

plaintiffs either prior to filing of the suit or much later then

his actual date of death. The probability of manufactured

death certificate is automatically nullified when the death

certificate was obtained in the year 1972 i.e., around 33

years before the suit was filed. It is not expected that the

plaintiffs will take the certificate in the year 1972 with the

anticipation that perhaps the defendants would file one suit

after almost 3 or 4 decades against them. Moreover, the

only questions that were put to PW1, who produced the

original death certificate, as to when he obtained the

certificate or whether any document was submitted to prove

the actual date of death before the concerned officer prior to

issuance of the certificate. Apart from these two questions,

no other questions were put to the witness to test the

veracity or authenticity of such certificate. The defendants

did not even care to suggest that the certificate is

manufactured for the purpose of the case nor any objection

was given by the defendants at the time when the

certificate was admitted in evidence. Again PW2 came

before the Court and stated that the plaintiffs are

cultivating the suit land after death of their father. During

cross examination the witness was questioned by the

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defendants as to when Dilbahar died to which he gave a

specific answer that Dilbahar died around 40 years ago but

the defendants in spite of eliciting such positive answer

have not denied the statement by way of any suggestion. In

other words, it can be said that the death of Dilbahar which

is suggested by the witness is admitted by the defendants.

Now, if the certificate was admitted in evidence without

any objection from the quarter of the defendants then the

date of death of Dilbahar can be taken as 17.07.1968.

There can not be any juvenile discussion regarding legality

of the deed allegedly executed by a person who is proved to

be dead at the time of its execution. When the vendor is

proved to be dead at the time of execution of the deed of

1969 and 1972 then the irresistible conclusion is that deed

No. 9917 dated 10.06.1969 and 6173 dated 29.04.1972

are void and not binding upon the plaintiffs.”

29. In Brij Lal and Sons (supra), the Delhi High Court noted

that,

“17. Nor can the Applicant invoke the inherent

jurisdiction of this Court under Section 151 of the Code to

overcome the absence of jurisdiction. It is settled that the

inherent powers preserved under Section 151 CPC are

intended to supplement the procedure prescribed by the

Code and cannot be exercised contrary to its express

provisions or to confer a jurisdiction which the Court

otherwise does not possess. Equally, those powers cannot

be invoked to circumvent the doctrine of finality or to secure,

22

under the guise of a miscellaneous application, a rehearing

of issues already decided.

18. Viewed as a whole, the present proceedings are

nothing but an attempt to reopen concluded adjudications

by adopting the form of a miscellaneous application. If such

a course were permitted, any unsuccessful litigant could

bypass the statutory framework governing appeals and

review proceedings by repeatedly filing mis cellaneous

applications seeking substantially the same reliefs. Such a

course is clearly impermissible. What cannot be achieved

directly cannot be permitted to be accomplished indirectly.”

30. In R.V.E. Venkatachala Gounder (supra), the Hon’ble

Supreme Court was of the view that the omission to object becomes

fatal because by his failure the party entitled to object allows the party

tendering the evidence to act on an assumption that the opposite party

is not serious about the mode of proof. In the case at hand, as noted

above, Exhibit 2, the death certificate of Dilbahar was admitted in

evidence without any objection from the defendant’s side.

31. In Bipin Shantilal Panchal (supra), the Hon’ble Supreme

Court laid down that,

“14. When so recast, the practice which can be a better

substitute is this: Whenever an objection is raised during

evidence-taking stage regarding the admissibility of any

material or item of oral evidence the trial court can make a

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note of such objection and mark the objected document

tentatively as an exhibit in the case (or record the objected

part of the oral evidence) subject to such objections to be

decided at the last stage in the final judgment. If the court

finds at the final stage that the objection so raised is

sustainable the Judge or Magistrate can keep such

evidence excluded from consideration. In our view there is

no illegality in adopting such a course. (However, we make

it clear that if the objection relates to deficiency of stamp

duty of a document the court has to decide the objection

before proceeding further. For all other objections the

procedure suggested above can be followed.)

15. The above procedure, if followed, will have two

advantages. First is that the time in the trial court, during

evidence-taking stage, would not be wasted on account of

raising such objections and the court can continue to

examine the witnesses. The witnesses need not wait for

long hours, if not days. Second is that the superior court,

when the same objection is recanvassed and reconsidered

in appeal or revision against the final judgment of the trial

court, can determine the correctness of the view taken by

the trial court regarding that objection, without bothering to

remit the case to the trial court again for fresh disposal. We

may also point out that this measure would not cause any

prejudice to the parties to the litigation and would not add

to their misery or expenses.

32. In that view of the facts, since the Partition Suit was

remanded to the learned trial with directions which was limited to the

24

determination of shares on the basis of its findings on issue nos. 3 and

4, it was not open to the learned trial court to allow introduction of

further evidence which shall have direct bearing on its findings on

issue nos. 3 and 4, which was not interfered by the Appellate Court.

The prayers in the petition so filed on behalf of the defendants, which

resulted in the impugned order, has the effect of de novo trial of the

Partition Suit, which was not directed by the learned Appellate Court.

Such an order passed by the learned trial court cannot be sustained.

The impugned order is also not tenable in so far as it relegates the

defendants to obtain an order from appropriate forum for judicious

decision. The learned trial court was competent enough to decide on

the issue before it.

33. Accordingly, on the basis of discussions made hereinabove,

the impugned order is hereby set aside. Learned trial court shall

proceed to act in strict compliance of the order passed in FAT 346 of

2019 in accordance with law.

34. Consequently, both the Civil Order applications under Article

227 of the Constitution of India being C.O. 4341 of 2023 and C.O.

115 of 2025 are accordingly disposed of.

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35. Urgent photostat certified copy of this judgment, if applied for,

be supplied to the parties on priority basis upon compliance of all

formalities.

[MD. SHABBAR RASHIDI, J.]