When a defendant appears but never files a written statement, and yet the trial court dismisses a partition suit with minimal reasoning, the real work shifts to the first appellate court. For District Judges, such appeals are a common—and delicate—test of how far one can go on the existing record, how to treat additional evidence under Order XLI Rule 27 CPC, and how strictly to enforce the “no new case in appeal” rule.
This article distils core principles from the CPC, the Evidence Act and leading Supreme Court decisions, using the typical pattern of a partition suit based on revenue records, an absent written statement, unrebutted plaintiff’s evidence, and an Order XLI Rule 27 application for certified 7/12 extracts or similar public documents.
“First appeals are not a mere formality; the District Court is the final court on facts.”
First appeal is a full rehearing, not a ritual
The Supreme Court has consistently held that a first appeal is a valuable right, and the first appellate court is the final court on facts. It must re‑appreciate the entire evidence and record its own findings on all material issues of fact and law.
In Santosh Hazari v. Purushottam Tiwari, the Court stressed that the first appellate judgment must show “conscious application of mind” to all issues; where it reverses the trial court, it should come to “close quarters” with the trial reasoning and assign its own reasons. Later cases have criticised cryptic disposal of first appeals.
Applied to a dismissed partition suit:
The appellate court cannot simply say “plaintiff failed to prove the case” and affirm.
Nor can it mechanically remand without first examining whether it can decide the appeal on the existing and proposed record.
No written statement: default limits the defence, but not the burden of proof
Where the defendant has appeared but not filed any written statement, the suit rightly proceeds without a defence. But this does not automatically entitle the plaintiff to a decree; the burden to prove title, co‑ownership and entitlement to partition remains on the plaintiff.
At the same time, the defendant’s default has important consequences:
Without a written statement, the defendant cannot be allowed in appeal to set up an altogether new factual story—such as fresh genealogies, prior partitions, or intricate limitation facts—unless those facts clearly emerge from the plaintiff’s own documents or admissions.
The respondent may still support the decree by arguing that the plaintiff’s own pleadings and evidence are legally insufficient. That is a permissible legal argument on the adequacy of the plaintiff’s case, not a new factual defence.
The Supreme Court has repeatedly held that facts not pleaded cannot be the foundation of relief, and fact‑dependent legal points raised for the first time in appeal are impermissible. Bharat Singh v. State of Haryana and cases such as Ritesh Tewari v. State of U.P. emphasise that where a legal point requires factual support, those facts must be pleaded and proved at the trial stage.
“No additional evidence may be admitted at the appellate stage unless it dovetails with the case framed by the pleadings.”
Unrebutted evidence: strong, but still to be weighed
In the standard pattern, one of the plaintiffs steps into the witness box, produces revenue extracts, mutation entries and maybe relinquishment deeds, and there is no cross‑examination.
Unrebutted evidence is not automatically conclusive, but it is entitled to great weight:
The appellate court should test whether the plaint properly pleads genealogy, nature of property and shares.
It should examine whether the revenue entries and other documents support the case: do they show the common ancestor, the recorded inheritance, and co‑recording of parties?
Any internal inconsistency (e.g. four sons pleaded but shares calculated as if there were only three) must be noticed and resolved.
If the oral and documentary evidence is coherent and consistent, rejection without reasons is perverse and invites interference in first appeal—and in extreme cases, in second appeal as well.
Order XLI Rule 27 CPC: the true test from Supreme Court
Order XLI Rule 27 is an exception: appeals are ordinarily decided on the trial record. Additional evidence may be admitted only within narrow limits. The Supreme Court has articulated the controlling tests in several decisions:
A. Andisamy Chettiar v. A. Subburaj Chettiar (2015) 17 SCC 713 – Additional evidence is permissible where the appellate court “requires” it to pronounce judgment or for some “other substantial cause”; not merely because it is relevant or was not produced earlier.
Union of India v. K.V. Lakshman (2016) – A party must show (i) good reason for non‑production at trial, and (ii) that the evidence is material and would assist in doing justice.blog.
Sanjay Kumar Singh v. State of Jharkhand (2022) – The true test is whether the appellate court can pronounce judgment satisfactorily on the record as it stands; if the court feels “a cloud of doubt” that can be removed by the additional evidence, admission may be justified.
Gobind Singh v. Union of India (2026) – Reiterates that Order XLI Rule 27 cannot be used to fill up lacunae; it is available only in exceptional circumstances where the court really needs the new material to reach a just decision.
For District Judges, the disciplined approach is:
First decide whether the record is genuinely inadequate to pronounce judgment.
Then record specific reasons why the additional documents are needed to remove doubt or clarify a material issue.
Make it clear that the power is used sparingly, not to rescue a negligent litigant.
Certified 7/12 extracts and revenue records: public documents in practice
In partition appeals, applications under Order XLI Rule 27 often seek to introduce:
Certified 7/12 extracts,
Certified mutation entries,
Certified copies of registered relinquishment deeds.
Under the Evidence Act framework, such revenue records are public documents; certified copies issued by the competent authority are admissible to prove their contents, without summoning the original record in every case. Sections 74, 76 and 77 (and their updated counterparts in the Bharatiya Sakshya Adhiniyam) govern this regime.
Important practical points:
A certified copy proves the existence and contents of the public record, but not automatically the truth of every recited fact or the legal inferences a party seeks to draw.
If authenticity and identity are not seriously disputed (e.g. both sides accept that the extract relates to the same Gat number and period), there is no necessity to remand merely for “formal proof” of the certified copy.blog
The judicial function is to determine what these entries show about:
the origin of title (common ancestor or otherwise),
the devolution (inheritance, sale, partition),
and the co‑recording of parties in the record.
Thus, where appellants file certified 7/12 extracts showing both sides as recorded holders or as persons having “other rights” in the same land, the appellate court can legitimately treat that as strong evidence of co‑recording, and then ask whether—along with oral evidence—it proves the joint or co‑owned nature of the property.blog.
Decide, take limited evidence, or remand? A three‑step choice
After admitting additional revenue documents, a District Judge has three realistic procedural options.
(1) Decide the appeal finally on the expanded record
Appropriate where:
The plaint and oral evidence, read with existing and newly admitted certified copies, clearly establish:
the common ancestor or source of title,
recorded inheritance and devolution,
identity of branches and their shares.
No genuine factual controversy remains that requires oral evidence from the respondents.
Here, the first appellate court should exercise its full fact‑finding power and pass a preliminary decree for partition if the plaintiff’s case is otherwise proved. This is in line with Santosh Hazari and related decisions insisting that first appeals be decided on merits wherever possible.
(2) Limited additional evidence under Order XLI Rules 28 and 29
Suitable where:
The certified documents are admissible, but some linkage or effect is unclear—for example:
whether a specific mutation number relates to the suit land,
whether a relinquishment exhausted the entire share of that branch.
The appellate court needs only brief clarificatory evidence, not a full retrial.
In such cases, the court may:
Frame specific points under Order XLI Rule 29 (e.g. “Whether Mutation No. X pertains to suit Gat No. Y?”), and
Either record evidence itself or direct the trial court to do so under Rule 28, returning the evidence or findings for final decision.
This shows that the appellate court has chosen the least disruptive procedure.
(3) Wholesale remand: last resort
Full remand under Order XLI Rule 23/23‑A is justified only when:
The suit was tried on wholly misdirected issues—for example, issues only on “lawful possession” and “obstruction” in what is essentially a partition and title suit.
Fundamental matters (genealogy, necessary parties, nature of property, effect of prior suits/transactions) were never really addressed, and cannot be cured even by limited additional evidence.
Even when remanding, the appellate court should:
Set aside the decree explicitly,
Permit written statement within a strict time frame if justice demands,
Direct framing of proper issues,
Specify the exact questions on which further evidence is needed.
No new case in appeal: enforcing the pleadings‑first discipline
It is common in these appeals for respondents to raise, for the first time:
objections of non‑joinder of specific heirs and branches,
pleas that the suit is a “partial partition” because some lands or Gats were not included,
fact‑based limitation defences,
allegations that a particular party is a stranger without title.
Recent Supreme Court analyses, such as the “pleadings‑first” discussion in Iqbal Ahmed v. Abdul Shukoor and other cases, reinforce a simple rule: no additional evidence can be admitted and no relief can be granted on a case not emerging from the pleadings.
Combined with Bharat Singh and Ritesh Tewari, this means:
A respondent who did not file a written statement cannot re‑write the factual narrative in appellate written arguments.
The appellate court should refuse to entertain new, fact‑dependent pleas, and confine the respondent to:
legal submissions on the plaintiff’s case,
and defects that are apparent from the existing record.
“Pleadings remain the gateway; they prevent surprise and define the battlefield. Appeals are not the forum to redraw the map.”
Practical checklist for District Judges in partition appeals with no written statement
When confronted with a civil appeal from dismissal of a partition suit where the defendant never filed a written statement, District Judges can use this quick checklist:
Map pleadings and issues
Does the plaint plead genealogy, joint/ancestral nature of property, and shares?
Were trial issues framed accordingly, or misdirected to questions like bare possession/obstruction?
Evaluate the trial evidence
Is the plaintiff’s unrebutted testimony consistent with the revenue records and other documents?
Did the trial court ignore or misread key documents like 7/12 extracts, mutation entries, and relinquishment deeds?
Discipline new defences in appeal
Reject attempts to build fresh factual defences (non‑joinder, partial partition, limitation, status) in appellate notes when there was no written statement at trial. Confine the respondent to legal arguments on the plaint and trial evidence.
Use Order XLI Rule 27 sparingly but confidently
Admit additional certified revenue documents only after recording why they are needed “to enable the court to pronounce judgment” or for “substantial cause”, as explained in Andisamy Chettiar, K.V. Lakshman, Sanjay Kumar Singh and Gobind Singh.
Recognise certified 7/12 extracts as proof of contents
Treat them as admissible proof of the entries, unless authenticity or identity is seriously contested; focus on what they show about title, devolution and co‑recording, rather than remanding for formal proof.
Choose the least drastic remedy
If the expanded record is sufficient, decide the appeal and, where appropriate, pass a preliminary decree for partition.
If only narrow factual clarifications are needed, use Rules 28–29 for limited evidence.
Reserve wholesale remand for cases where a proper trial on correct issues simply has not occurred.
When District Judges consciously apply these principles, their appellate judgments in partition matters—especially those with silent defendants and noisy records—are far more likely to withstand second appeal scrutiny, while also delivering substantive justice in the case at hand.
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