Substituted service under Order V, Rule 20 of the CPC is not valid unless there is evidence that the defendant is keeping out of the way to avoid service and the summonses are affixed in conspicuous places.

1. This Is an appeal by defendants Nos. 11 to 20 against an order dismissing their application under Order IX. Rule 13 of the Code of Civil Procedure. The application was for setting aside an ex parte decree dated the 14th March. 1967, in Partition suit No. 45 of 1965, of the court of the first Subordinate Judge, Gaya. The application was filed on the 17th June, 1967.

2. The case of the appellants was that all the processes in the suit were fraudulently suppressed and they had no knowledge of the suit till the 9th of June, 1967, when they came to know of the suit and the ex parte decree from one Kamta Tiwary (A. W. 1).

3. In their rejoinder, the plaintiff-respondents claimed that the appellants had knowledge of the suit when the summonses in the suit were made over to them by the court peon and again when the registered post-cards were tendered to them by the postal peon. Further, there was also substituted service under Order V, Rule 20 of the Code of Civil Procedure by publishing the summonses in the Bihar Gazette and the appellants must be deemed to have notice of the suit.

4. The court below has disbelieved the case of the appellants that they had no knowledge of the suit and that they came to know of the ex parte decree only on the 9th of June 1967.

5. When we heard the appeal on the 30th of July, 1971, we thought it necessary to examine the original records of partition suit No. 45 of 1965, and called for it. We also wanted to see the plaint of partition suit No. 158 of 1962 of the court of the Munsif of Aurangabad, which was filed by original plaintiff No. 1, plaintiff No. 2 and some of the defendants of the suit for partition of the properties, which are subject-matter of the aforesaid partition suit No. 45 of 1965. Learned counsel for the appellants made over to us a certified copy of the plaint of title suit No. 158 of 1962. We have taken it as additional evidence and marked it as Exhibit 5.

6. From the genealogy, as stated in the Schedule 1 to the plaint of partition suit No. 45 of 1965, it appears that one Rambarat Tewari had two sons, Rambrichh Tewari and Deonarain Tewari Deonarain Tewari had two sons. Gorakh Tewari and Bachhan Tewari. Bachhan Tewari is himself one of the appellants. The other appellants are descendants of Gorakh Tewari and Bachhan Tewari Rambrichh Tewari had five sons. Ramjanam Tewari. Ramprit Tewari. Chandrika Tewari, Mundrika Tewari and Ramnaresh Tewari. Two of them are now dead. Ramjanam, Mundrika and Ramnaresh Tewari are respondents to this appeal. The other respondents are descendants of these five brothers. Partition suit No. 158 of 1962 was instituted by Ramprit Tewari, his son Bindeshwar Tewari (plaintiff No. 2 of the present suit); Ramnaresh Tewari and his sons, and the son of Chandrika Tewary. In that plaint it was stated that the present appellants had half share in the properties in suit, the other half belonging to the plaintiffs of that suit and the other descendants of Rambrichh Tewari. As the Munsif found that he had no pecuniary jurisdiction to try the suit, the plaint was returned for proper presentation. Thereafter, partition suit No. 45 of 1965 was filed at Gaya. This suit was instituted by Ramprit Tewary (since dead) and his son and grand son. In the plaint of this suit it is claimed that appellants have got only two-seventh share and the five seventh share belongs to the descendants of Rambirichh Tewari. It appears that the property, which is the subject-matter of the suit, and, admittedly belonged to Rambarat Tewari, was sold in execution of a Certificate for arrears of road cess. The purchaser re-conveyed the property and the deed of transfer was executed in the names of Ramprit, Ramjanam, Chandrika Mundrika and Ramnaresh Tewari, the five sons of Rambrichh and Gorakh Tewari and Bachhu Tewari, two sons of Deonarain Tewari. As the re-conveyance was in the names of seven persons, the plaintiffs claimed that the share of the vendees is per capita, i. e., one seventh ea