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Andhra Pradesh High Court
Judges : ALLADI KUPPUSWAMI, V.MADHAVA RAO
Munassar Bin Jan Nisar Yarjung (died) - Appellant
Versus
Fatima Begum - Respondent
Decided On : 02-24-75
PARTITION SUIT - ORDER 9 RULE 13 CPC - ORDER 5 RULE 19 CPC - ORDER 9 RULE 6(1)(C) CPC - EX PARTE DECREE - SETTING ASIDE - SUFFICIENCY OF EVIDENCE - SERVICE OF SUMMONS - REFUSAL TO ACCEPT - POSTPONEMENT OF HEARING - AGRICULTURAL LANDS - PARTITION BY COLLECTOR.
Fact of the Case:
Plaintiffs filed a suit for partition of the property of the deceased Nawab Jan Nissar Yar Jung. The first defendant, Munassar Bin, was set ex parte. The plaintiffs produced evidence to prove their claim. The court passed a preliminary decree for partition as prayed for.
Finding of the Court:
The court held that the first defendant was properly set ex parte. The court also held that the evidence produced by the plaintiffs was sufficient to grant a decree in their favour.
Issues: 1. Whether the court below erred in setting the first defendant ex parte? 2. Whether the court below ought not to have granted the decree in favour of the plaintiffs on the strength of the evidence of P. W. 1, which was not sufficient to prove the case of the plaintiffs?
Ratio Decidendi: 1. The court held that it is not open to the appellant to contend in this appeal that the order setting the defendant ex parte is not correct as the defendant had filed a petition to set aside the ex parte order which was dismissed and the appeal preferred against that order has also been dismissed as withdrawn. 2. The court held that the service of summons was sufficient and the court below was right in declaring the defendant ex parte. 3. The court held that the evidence produced by the plaintiffs was sufficient to grant a decree in their favour.
Final Decision: The appeal was dismissed with costs.
( 1 ) ONE Nawab Jan Nissar Yar Jung died leaving a widow Fatima Begum, He had a son Khalid Bin by another wife and two sons and three daughters by his wife Fatima; namely (i) Mansoor Bin, (ii) Munassar Bin. (iii) Ayeesha Begum (iv) Sayeda Begum, and (v) Zubida Begum. Mansoor Bin and Ayeesa Begum pre-deceased Nawab Jan Nissar Yar June. Mansoor Bin left behind him Fatima Begum and Khadija Begum. Ayeesha Begum left behind her Asiwaz Bin Sayeed Abi-al-lail and Abdul-lah Bin Abi-al-lail. On 17-12-1965 a lawyers notice was issued to Munassar Bin on behalf of the eldest son, Khalid Bin. Fatima Begum and Khadija Begum the daughters of the deceased second son; Asiwaz Bin Sayeed Abi-al-lail and Abdul-lah Bin-Abi-al-lail the sons of the deceased daughter Ayeesha Begum and Sayeeda Begum and Jubida Begum, the daughters of late Nawab Jan Nissar Yar Jung to the third son Munassar Bin It was stated therein that Nawab Jan Nissar Yar Jung had died leaving these heirs and the three sons were entitled to two shares each and the three daughters were entitled each to one share. The share of the deceased son has to be divided between his daughters and the share of the deceased daughter had to be divided between her sons. It was also stated that Khalid Bin though entitled to two shares did not want to receive the same for his personal use. Munassar Bin was therefore requested to agree to a partition of the property of the late Nawab Jan Nissar Yar Jung according to the aforesaid shares. The notice was received on 21-12-1965. But Munassar Bin did not reply to that notice. Thereupon a suit Original Suit No. 51 of 1966 was filed on 14-10-1966 before the First Additional Chief Judge. City Civil Court, Hyderabad Apparently because Khalid Bin did not claim his two shares the plaintiffs who were three in number, namely the two daughters of the second son and one of the sons of the deceased daughter claimed that the property was to be divided into seven shares in which the plaintiffs share came to 5/14. The plaintiffs therefore asked for partition, and separate possession of 1/7th share each for plaintiffs 1 and 2 and 1/14th sharp for the 3rd plaintiff. Munassar Bin was impleaded as the first defendant and the two daughters of late Nawab Jan Nissar Yar June as defendants 2 and 3 and another son of one of the deceased daughters as defendant No. 4.
( 2 ) ON 15-11-1966 Sri K. Janardan Rao offered to appear for the 2nd defendant. Hence notice was ordered to defendants 1 and 3 and the suit was adjourned to 5-12-1966. On 5-12-1966 Sri Janardhan Rao appeared for defendants 2 to 4. Hence notice was ordered to the first defendant and the suit was adjourned to 24-12-1966. It is seen from the affidavit of the process-server that he went to the first defendants place on 22-12-1966 and the first defendant was present in the house. He came out and refused to receive the summons and therefore a copy of the summons was affixed on his house. On 24-12-1966 the service was held to be sufficient and the first defendant was set ex parte. Time was granted to defendants 2 to 4 for filing a written statement. Defendants 2 to 4 filed a written statement agreeing to the suit being decreed in accordance with the plaint. Thereafter P. W. 1, the 3rd plaintiff, was examined and on 7-3-1967 and a preliminary decree for partition was passed as prayed for on the basis of the evidence of P- W. 1.
( 3 ) THE first defendant against whom the decree had been passed ex parte filed an application before the Court below to set aside the ex parte decree under Order 9, Rule 13. That petition was dismissed. Thereupon, he preferred an appeal, C. M. A. 342/1968, to this court against the order refusing to set aside the ex parte decree. He also preferred a regular appeal against the ex parte decree which is the present appeal. C. C. C. A. No. 151 of 1971. As a regular appeal had been preferred, it is stated that the C. M. A. No. 342/1968 was withdrawn and dismissed.
( 4 ) IN this appeal it
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