The court ruled that an ex parte decree is defective and non-executable; both parties must have the opportunity to present their claims and evidence in a partition dispute involving jointly owned property.

JUDGMENT :

MITALI THAKURIA, J.

1. Heard Mr. M.K. Choudhury, learned counsel for the appellant and Mr. B.D. Goswami, learned counsel for the respondent.

2. This is an appeal under Section 96 of the CPC for setting aside the judgment and decree dated 20.12.2016, passed in Title Suit No. 08/2014 by the learned Civil Judge, Darrang, Mangaldai decreeing the suit.

3. The brief facts of the case is that the respondent as plaintiff instituted a Title Suit No.08/2014 before the learned Civil Judge, Darrang, Mangaldai for declaration of right, title and possession over the C Schedule land for separate Patta of C Schedule land, permanent injunction, restraining the defendant/appellant, his agents dispossessing the plaintiff or interfering in their peaceful possession and also prayed for issuance of preliminary decree for partition of A Schedule land into two equal shares and after equalizing the shares of the plaintiff, half of the Schedule A land be given to the plaintiff/respondent and other half may be given to the defendant/appellant by appointing an Amin Commission.

4. After receiving the summons in said case, the defendant/respondent appeared through their engaged counsel and also filed their Written Statement stating real facts of the case. But subsequently, the defendant failed to appear before the learned Trial Court and on the basis of which the matter proceeded ex parte against the defendant/appellant and on the basis of documents and evidence adduced by the plaintiff/respondent, the suit is accordingly decreed vide judgment and order dated 20.12.2016.

5. It is submitted by Mr. Choudhury, learned counsel that after proceeding with the case ex parte, the defendant/appellant were also not allowed to cross examine the plaintiff witnesses and hence, they did not knew about the delivery of the judgment and came to know about the same only when the Circle Officer, Dalgaon went to the place for demarcation of the land on the strength of the judgment passed by the learned Civil Judge. The defendant/appellant was also cooperating with his engaged counsel, but unfortunately due to fault of the conducting counsel, the suit proceeded ex parte against the defendant/appellant.

6. He further submitted that the A Schedule property can be divided into two parts, i.e., the B Schedule and C Schedule land, which is also described in the said plaint. The entire property is jointly owned and possessed by the two brothers, i.e., the appellant and the respondent. But the stand of the plaintiff/respondent is that, the entire C Schedule land falls in his share is not correct and the reason behind claiming the C Schedule land by the plaintiff/respondent is that the entire C Schedule land is a market area which is more valuable than the B Schedule land which is basically a low lying area and agricultural land. Thus, he submitted that if the A Schedule land is to be divided into two equal shares, the appellant/defendant is also entitled for half of the share in both B Schedule and C Schedule land, but without considering this aspect of the case, the learned Civil Judge in one hand had decreed the right, title and interest in favour of the plaintiff/respondent for entire C Schedule land and in the same time, preliminary decree was also issued to partition the A Schedule land into two equal shares for the appellant as well as respondent. Accordingly, he submitted that the matter may be remanded back with a direction to the learned Trial Court to give a chance to the appellant to adduce their evidence and to contest the case accordingly.

7. Mr. Choudhury, learned counsel further submitted that as per the prayer made in the plaint, the appellant sought for declaration of right, title, interest and possession over the C Schedule land and also prayed for issuance of precept directing the Circle Officer, Dalgaon Revenue Circle to issue separate Patta in the name of the plaintiff in respect of C Schedule land along with a prayer for permanent injunction and as per the