High Court Division
Shree Ananta Kumar Aich and others v Shree Sadhon Bhowmik and others
Civil Revision 2692/2017 · Rules discharged; opposite party's title suit decreed · Decided 30 July 2026
The petitioners' predecessors obtained an ex parte decree of title by adverse possession in 2000 against the heirs of the S.A. recorded tenant, claiming through an unregistered deed of 1970. They then sued for an injunction against the opposite party, who had bought the land by registered deed in 2000 from the recorded tenant's grandsons and who sued to have the ex parte decree declared void. The Senior Assistant Judge, Netrokona decreed the injunction suit and dismissed the other; the Additional District Judge, Netrokona remanded both suits for an issue on service of summons. In revision, the High Court Division held the remand unjustified because the evidence and order sheets were on record. The unregistered deed was not proved, exclusive possession within a specific boundary was not shown, and the ex parte decree was collusive since summons were not served on all defendants and a necessary party was omitted. Using its section 115(1) powers, the Court set aside the decrees below, decreed the opposite party's suit and discharged the Rules.
- Whether the appellate court was right to remand both suits for an issue on service of summons when the evidence and order sheets on that question were already on record.
- Whether the petitioners proved title under an unregistered deed of 1970 and exclusive possession so as to obtain a permanent injunction.
- Whether an ex parte decree obtained without service of summons on all defendants and without impleading a necessary party was binding on a later purchaser, and whether the revisional court could finally decide both suits.
- When both parties have adduced sufficient evidence to adjudicate the dispute, the appellate court must decide the suit on the evidence on record, and remand should ordinarily not be ordered if no additional evidence is required.
- The presumption of due registration under section 60 of the Registration Act, 1908 is rebuttable and does not arise for an unregistered deed, so its execution must be proved, which the petitioners failed to do.
- To obtain a permanent injunction the plaintiff must prove exclusive possession within the specific boundary of the suit land.
- After service of summons the court must fix a date for the written statement and cannot prejudge that the defendants will not appear; an ex parte decree passed without service on all defendants and without impleading a necessary party was collusive and not binding on the later purchaser.
- Once its jurisdiction under section 115(1) of the Code of Civil Procedure is established, the revisional court may scrutinise the proceedings as a whole and finally decide title and possession on the evidence, even in favour of a party who did not file a revision.
It is a settled proposition that when both the parties have adduced sufficient evidence to adjudicate the dispute between the parties, the appellate Court shall dispose of the suit considering the evidence available on the record.
