IMPORTANT POINT
Once ex-parte decree is set aside, consequential benefits stealthily acquired thereon must be taken away.

JUDGMENT

Mohan M. Shantanagoudar, J.

Delay condoned.

2. Leave granted.

3. The father of the fifth respondent herein, Sidheshwar Prasad, i.e. the late Brhamdeo Narayan, at the first instance, filed Title Suit No. 105/1970 for declaration of title, restoration of possession and for eviction of the predecessor-in-interest of the appellant and certain other persons in the year 1970 in respect of the disputed property, which came to be dismissed on 09.06.1971. The same person, i.e., Brhamdeo Narayan, filed another suit in the year 1988 (i.e. after 17 years) for declaration and for injunction against the appellant herein and the State Authorities in respect of the disputed property. The said suit (renumbered as Title Suit No. 32/1993), with the fifth respondent and his mother and brother brought on record as the legal representatives of the original plaintiff after his death by means of substitution, came to be decreed ex-parte against the appellant and others on 06.06.1994. No notice was served on the defendants in the said suit. On 21.11.1994, the appellant herein filed what eventually came to be numbered as Miscellaneous Case No. 6/1999, for setting aside the ex-parte judgment and decree dated 06.06.1994 passed against him. After a long-drawn trial in Miscellaneous Case No. 6/1999, the same came to be allowed on 21.05.2003, and consequently the ex-parte decree passed against the appellant and others on 06.06.1994 in Title Suit No. 32/1993 was set aside, and the said title suit was restored to its original file and number. It was specifically held that notice had not been served on the appellant herein (a defendant in the Title Suit No. 32/1993). On 29.08.2006, the said suit (by now renumbered as Title Suit No. 01/2003) was dismissed.

4. Meanwhile, taking advantage of and based on the ex-parte decree dated 06.06.1994, the fifth respondent initiated three proceedings (i.e. demarcation, writ and contempt). He first initiated Demarcation Case No. 49/1997 before the demarcation Court, praying for the demarcation of R.S. Plot No. 313 (i.e. the disputed property), for the erection of a boundary wall, and for the fixing of permanent pillars. In the said demarcation case, neither the appellant nor his predecessor-in-interest were made parties. The demarcation case was allowed on 08.01.1998, with directions for getting R.S. Plot No. 313 demarcated and for the submission of a report. Though such direction was issued by the demarcation Court on 08.01.1998 in favour of the fifth respondent, the same was not implemented by the concerned authorities, probably due to the pendency of Miscellaneous Case No. 6/1999. Hence, the fifth respondent next approached the High Court of Judicature at Patna in CWJC No. 3221/2003 for a direction to implement the order passed in Demarcation Case No. 49/1997. In the said writ petition also, the fifth respondent did not implead either the appellant or his predecessor-in-interest. The writ petition came to be allowed on 10.01.2008 by the High Court of Judicature at Patna with a direction to implement the order passed in Demarcation Case No. 49/1997. However, the order passed in this writ petition was also not implemented. Hence, finally, the fifth respondent moved a contempt petition in the form of Miscellaneous Jurisdiction Case No. 5323/2011 before the High Court of Judicature at Patna, in which a direction was issued on 16.12.2015 to the District Magistrate, Gaya as well as the Superintendent of Police, Gaya to implement the order of demarcation in Case No. 49/1997, and order dated 10.01.2008 in CWJC No. 3221/2003. The orders passed in the demarcation case and the writ petition were subsequently implemented. The possession of the demarcated property was also handed over in favour of the fifth respondent, that is to say, the appellant came to be dispossessed pursuant to the order dated 16.12.2015.

It is relevant to note that the appellant was not made a party in Title Suit No. 01/2003, CWJC No. 3221/2003 or Miscellane