- (1.) This Court has heard the learned Advocates for the respective parties. The facts of the case, very briefly, are as follows: The predecessor-in-interest of the plaintiffs-appellants filed a suit for partition against the defendants-respondents and the pro-forma respondents. The said suit was contested by the defendant Nos. 1 to 4 and 8 to 12 by filing written statement, as would appear from the judgement of the learned Trial Court itself. The original plaintiff claimed to have right, title and interest in respect of the schedule 'B' of the plaint. The aforesaid defendants disputed such claim of the plaintiff and it was their case that the plaintiffs did not legally derive any right, title and interest in the said property. It was alleged by the said defendants that the defendant No. 4 is the absolute owner of the 'B' schedule property. The plaintiff's case was that the plaintiff is the owner of 18-1/3 cents of land as described in the schedule 'B' of the plaint which was disputed by the defendants. The learned Trial Court by its judgment and decree decreed the said suit in preliminary form by declaring the plaintiffs right, title and interest in the schedule 'B' property described in the plaint and the parties were directed to effect amicable partition by metes and bounds. It was further ordered by the learned Trial Court that in default, the parties will be at liberty to make an application before the learned Court for appointment of a Commissioner to effect such partition.
(2.) Challenging the aforesaid judgement and decree passed by the learned Trial Court, the defendants-respondents filed Title Appeal No. 110 of 1988 which was placed before the learned Additional District Judge, 1st Court, Alipore, District South 24-Parganas. It appears that in the said Title Appeal the defendants had filed an application under Order 41 Rule 27 of the Code of Civil Procedure whereby they intended to adduce in evidence two original Kobalas dated 30.4.1958 and 6.5.1958 originally executed by one Jamila Bewa as additional evidence. The learned Lower Appellate Court by the impugned judgement and decree allowed the said application under Order 41 Rule 27 of the Code of Civil Procedure and directed the learned Trial Court to mark the said documents as exhibits and remanded the said matter back to the learned Trial Court after setting aside the judgement and decree passed by the learned Trial Court. The learned Lower Appellate Court directed the learned Trial Court to consider the aforesaid two documents as additional evidence along with other evidence on record and pass a judgement accordingly.
(3.) The learned Advocate appearing on behalf of the plaintiffs-appellants quite rightly submitted that the learned Lower Appellate Court has not assigned any reason whatsoever while allowing the application under Order 41 Rule 27 of the Code of Civil Procedure. The said learned Advocate submitted that the learned Lower Appellate Court has not even discussed in its judgement with regard to the merits, if any, of the application under Order 41 Rule 27 of the Code of Civil Procedure. He further submitted that the learned Lower Appellate Court has not also recorded its satisfaction as to whether or not the defendants-respondents were really prevented by sufficient cause from adducing such evidence at the time when the trial took place in the suit. The said learned Advocate further submitted that if at all there was any reason to admit the aforesaid two documents as additional evidence in the Title Appeal, the learned Lower Appellate Court itself could have decided the matter finally after considering the aforesaid two documents as additional evidence along with other evidence on record and disposed of the appeal itself on merits.;