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2012 Supreme(Pat) 1209
IN THE HIGH COURT OF PATNA
V. Nath, J.
Nilam Devi wife of Ram Naresh Singh, resident of Village-Kheria, P.S.-Korha, District-Katihar & Anr. : Appellants
vs.
Vidya Sagar Chaudhary son of late Jagarnath Choudhary resident of Village-Kheria, P.S.-Korha, District-Katihar & Ors. : Respondents
F.A. No. 220 of 2009
Decided On : 12.9.2012
For the Appellants : M/s Sushanta Kumar Das, Ratna Das, Anish Chandra Sinha.
For the Respondents: M/s S.S. Dwivedi, Rakesh Chandra.
The court's decision emphasized the importance of appearing in court proceedings and the consequences of deliberate non-appearance after being served with summons.
Headnote:
ex parte - Property Dispute - Order IX Rule 6 CPC, Order XVII Rule 2 C.P.C. - The court granted the decree ex-parte to the plaintiff as prayed and held him entitled to get possession over the suit land through the process of the court. The defendants appeared in the suit after service of summons but subsequently failed to appear, and the court proceeded with the hearing ex parte. The court found that the defendants deliberately left the suit after the dismissal of their appeal against the order of injunction. The court held that the impugned judgment and decree should not be interfered with as the defendants failed to satisfactorily explain their default in not appearing when the suit was taken up for hearing. The appeal was dismissed, and the impugned judgment and decree were affirmed.
Fact of the Case:
The plaintiff filed a suit for declaration of title and possession over the suit land and for declaration that the transfer of the land by the defendants was illegal and inoperative. The plaintiff claimed that the land was joint family property and that the defendants had no right, title, or interest in the suit land.
Finding of the Court:
The court found that the defendants deliberately left the suit after the dismissal of their appeal against the order of injunction. The court held that the impugned judgment and decree should not be interfered with as the defendants failed to satisfactorily explain their default in not appearing when the suit was taken up for hearing.
Issues: The main issues were whether the impugned judgment and decree could be sustained in law and on facts, and whether the plaintiff had succeeded in establishing his claim by leading cogent evidence.
Ratio Decidendi: The court held that the defendants deliberately left the suit after the dismissal of their appeal against the order of injunction and failed to satisfactorily explain their default in not appearing when the suit was taken up for hearing. The court affirmed the impugned judgment and decree.
Final Decision: The appeal was dismissed, and the impugned judgment and decree were affirmed.
The judgment and decree dated 18.3.2009 passed in T.S. No. 51 of 2002 by Sub-Judge-I, Katihar is under challenge in this appeal. By the impugned judgment and decree the learned court below has granted the decree ex-parte to the plaintiff as prayed and held him entitled to get possession over the suit land through the process of the court.
2. The T.S. No. 51 of 2002 has been filed by the plaintiff for declaration of his title and possession over the suit land and further for declaration that the transfer of the two acres of the land out of the suit land by the defendant nos. 7 and 8 to the defendant nos. 1 to 6 by virtue of five sale deeds dated 2.5.2002 was illegal and inoperative. The prayer has also been made to declare the five sale deeds as null and void and inoperative in law. The plaintiff has also prayed for confirmation of his possession over the suit land and permanent injunction against the defendants restraining them from interfering with his possession and in the alternative has prayed for recovery of possession in case of dispossession.
3. The narration of facts, in brief, of the case of the plaintiff is that Dev Nandan Choudhary was the common ancestor of the plaintiff and defendant nos. 7 and 8. He constituted a joint Hindu family along with his five sons, namely, Baidnath Prasad Choudhary, Ganesh Prasad Choudhary, Jagarnath Choudhary, Raghunath Choudhary and Kamta Prasad Choudhary out of whom Jagarnath Choudhary was the father of the plaintiff and Baidnath Prasad Choudhary was the father of defendant nos. 7 and 8. Baidnath Prasad Choudhary was the eldest son of Dev Nandan Choudhary from his first wife and other four sons were born from the second wife of Dev Nandan Choudhary. As Baidnath Prasad Choudhary was the eldest son, the joint family property had been mostly acquired in his name out of the joint family fund. However, taking advantage of the purchase of the lands in his name as well as entry of his name in the recent survey khatiyan, Baidnath Prasad Choudhary started assailing his exclusive title over the same which led to the filing of T.S. No. 62 of 1964 before Sub-Judge, Purnea by Dev Nandan Choudhary against Baidnath Prasad Choudhary for declaration that the lands acquired and recorded in the name of Baidnath Prasad Choudhary were all joint family properties. The said suit was decreed declaring that the entire property acquired and recorded in the name of Baidnath Prasad Choudhary were the joint family property. In Ceiling Case No. 242 of 1965-66 also the Deputy Collector Land Reforms held that the entire property standing in the name of Baidnath Prasad Choudhary was joint family property. No appeal was filed by Baidnath Prasad Choudhary against the judgment and decree passed in the title suit or the order passed in the ceiling proceeding. During the consolidation proceeding also by order dated 22.7.1988 the Consolidation Officer in Consolidation Case No. 2703 of 1988 passed the order for recording the properties, standing in the exclusive name of Baidnath Prasad Choudhary in the survey khatiyan or acquired in his name, in the names of the five sons of Dev Nandan choudhary.
4. The further case of the plaintiff is that after the death of Dev Nandan Choudhary, his five sons separated and came in separate possession of the joint family property according to the convenience but later on they amicably partitioned all the lands and accordingly filed a petition before the Consolidation Officer for preparing the consolidation records of the land separately in their names according to the partition. By order dated 7.5.1993 passed by the Consolidation Officer in Case No. 2719 of 1988, the prayer was allowed and direction was issued to record the land separately in the names of all the five brothers according to the partition.
5. It is further case of the plaintiff that in the partition, he has been allotted 2.72 acres of land of R.S. plot no. 2173 of khata no. 518 besides other plots and has been coming in
