In the High Court At Calcutta CIVIL APPELLATE JURISDICTION CIRCUIT BENCH AT JALPAIGURI APPELLATE SIDE Present:

The Hon’ble Justice Debangsu Basak SA 3 of 2025 With CAN 1 of 2025 With CAN 2 of 2026 Smt. Shyamla Barman & Ors.

VS Sri Sudhir Barman & Ors.

For the Appellants : Mr. Narendra Nath Das, Advocate Mr. Pragyadip Roy Basunia, Advocate Mr. Jagesh Chandra Roy, Advocate Mr. Madhab Kumar Roy, Advocate Mr. Debojit Roy, Advocate For the Respondents : Ms. Suman Sehanabis, Advocate Ms. Salok Sah, Advocate Ms. Anwesha Chakraborty, Advocate Heard & Judgment on: March 23, 2026 Debangsu Basak, J.

1. Appeal is directed against the judgment and decree dated June 13, 2025 passed in Title Appeal No. 29 of 2015.

2. By the impugned and decree, the learned 1^st Appeal Court reversed the judgment dated June 29, 2015 and the decree dated July 4, 2015 passed by the learned Trial Court in Title Suit No.3 of 2012, and dismissed the suit filed by the appellants.

3. Appeal was admitted by the Division Bench on September 1, 2025 on the following questions of law :-

“I) Whether the learned appellate court erred in setting aside the judgment and decree of the learned trial Judge on the ground of non-joinder of Naresh Chandra Barman, who was not concerned with the dispute involved in the suit. The dispute was restricted to an area of land allegedly owned, enjoyed and possessed by the appellants, as delineated in the schedule of the plaint.

II) Whether non-impleadment of Naresh Chandra Barman would be fatal to the suit, when the cause of action of the appellants was against the respondents who were allegedly disturbing the possession of the appellants in respect of 2.88 acres of land.

III) Whether Naresh Chandra Barman was either a necessary or a proper party for adjudication of the dispute between the appellants who claimed to be the exclusive owners of 2.88 acres of the plots in question, especially when Naresh Chandra Barman did not have any right, title and interest in respect of the said 2.88 acres of land.”

4. Learned advocate appearing for the appellant submits that, the suit for declaration and injunction was initially decreed. On appeal, the judgment and decree was reversed. He submits that, admittedly, the appellants are co-owners of the immovable property concerned. He draws the attention of the Court to the issues framed before the learned Trial Judge. He submits that, the learned 1^st Appeal Court did not frame any issue as to non-joinder and mis-joinder of parties.

5. Referring to Order I Rule 9 of the Code of Civil Procedure, 1908, he submits that, non-joinder of necessary parties is not fatal to the case of the plaintiff. In support of such contention, he relies upon AIR Online 2023 HP 1281 [Mohinder Singh vs. Gurbax Singh] and the judgment of the Hon’ble Supreme Court reported in (2006) 2 SCC 724 [Mohinder Prasad Jain vs. Manohar Lal Jain]

6. Learned advocate appearing for the appellant draws the attention of the Court to the provisions of Order XLI Rule 25 of the Code of Civil Procedure, 1908 and submits that, the 1^st Appeal Court erred in not framing an issue with regard to non-joinder of parties.

7. Relying upon (2008) 12 SCC 372 [Bachahan Devi & Anr. Vs.

Nagar Nigam, Gorakhpur & Anr.] learned advocate appearing for the appellants submits that, additional issues can be framed by the appeal Court.

8. Relying upon (2025) 3 SCC 286 [Shyam Kumar Inani vs. Vinod Agarwal and Ors.], learned advocate appearing for the appellants submits that, description of the immovable property appears from the pleadings in the plaint. On such ground alone, the suit cannot be dismissed.

9. Learned advocate appearing for the respondents submits that, the immovable suit property, in fact, involves 11.44 acres of land. Out of such, 11.44 acres, the appellants as plaintiffs are seeking declaration as owners of 2.88 acres. She refers to the pleadings in the plaint. She submits that, plaintiffs are tracing ownership through one Sarat Chandra Barman, since deceased. She submits th