17.02.2026 Court No.07 Item no.07 CP CALCUTTA HIGH COURT IN THE CIRCUIT BENCH AT JALPAIGURI C.O. 211 of 2025 With CAN 1 of 2026 Pintu Dey Sarkar Vs.

Niten Roy @ Nitendra Chandra Roy & Ors.

Mr. Saumyajyoti Dutta Ms. Nikita Agarwal …… for the petitioner.

Mr. Arijit Ghosh Ms. Abhisikta Das …….for the opposite parties.

By order dated November 10, 2025, passed in Title Suit No. 143 of 2006 the learned Civil Judge (Senior Division), Jalpaiguri, accepted the amended plaint filed by the plaintiffs incorporating the names of the heirs of the defendant no. 24, who died during the pendency of the suit.

One of the defendants in the suit is the petitioner before this court. The order has been challenged on the ground that by an order dated July 18, 2016, an application for substitution of the heirs of the defendant no. 24 had been rejected. No challenge was ever thrown to the said order of rejection and the heirs of the defendant no. 24 were never brought on record. Although, one such set of heirs appeared before the court and prayed for an opportunity to file a written statement, the prayer was rejected by the court.

At the stage of DW, the plaintiffs filed an amended plaint incorporating the names of the legal heirs of the defendant no. 24, without any order of court and the said plaint was accepted by the court without looking into the order by which the application for substitution was rejected and the order by which the prayer of the heirs and legal representatives of the defendant no. 24 to file their written statement was also rejected.

There is no doubt that the defendant no. 24 was a party to the partition suit and the law requires his heirs to be substituted or brought on record or be added to the proceeding, so that the partition suit can be adjudicated effectively. The heirs have a right to contest the suit.

The learned court may not allow further written statement to be filed by the heirs of the deceased defendant as the heirs are to adopt the written statement filed by their predecessor, but these heirs have to be brought on record. The suit will proceed in a defective manner. One of the alleged co-sharers may be deprived, in the event the shares of the parties are declared. The suit will go uncontested from the end of the said co-sharer.

Moreover, in a partition suit there can be a number of preliminary decrees. Parties can be deleted and added at any time. The heirs of the deceased defendant are presumed to be co-

owners, with the right to contest.

Under such circumstances, the petitioner is at liberty to file a formal application for addition of the heirs of the deceased defendant no. 24, as party respondents to the suit. The heirs of the deceased defendant may also file such application.

The learned court shall allow such application and, thereafter, an amended plaint shall be filed, by incorporating the names of the heirs. The order of acceptance of the amended plaint is set aside.

The order impugned is set aside with the above clarification. The amended plaint which has been filed in court shall be returned to the plaintiffs.

The revisional application is accordingly disposed of. There shall be no order as to costs.

Accordingly CAN 1 of 2026 is also disposed of.

Parties are to act on the server copy of this order.

(Shampa Sarkar, J.)