PER ARUN KUMAR GOEL, JUDGE (ORAL)

1. This appeal is directed against the judgment passed by District Judge, Jammu, on 26.10.1985, whereby suit filed by respondent No. 1 (hereinafter referred to as the defendant) has been decreed exparte.

2. Brief facts of the case out of which this appeal has arisen, are that plaintiff filed a suit against defendant, wherein three others persons were arrayed as proforma defendants namely Wazir Sansar Singh, Ex-Sub-Afsar Singh and Hawant Singh. This was a suit for recovery of Rs. 22,826.40 with costs and interest. As per plaintiff, he was induced to purchase a plot of land measuring 50 X 25 ft comprised in kharsa No. 23, having a room standing thereon, which was situated in Mohalla Rajpura Mangotrain, Jammu, for a sale consideration of Rs. 21,000/-, out of which the defendant received an amount of Rs.2000/- as an advance and the balance was agreed to be received by the defendant at the time of execution and registration of the sale deed. This bargain was negotiated by the plaintiff through property dealers, namely Dhani Ram and Sain Dass. Receipt of Rs. 2,000/- was executed and further a sum of Rs. 4,000/- was also received by the defendant from the plaintiff. Sale-deed came to be executed on 8-2-1983 and was registered with the registering authority on 9-2-1983, however, when it came to execution of the sale deed, defendant prompted the plaintiff to have got Rs. 15,000/- shown as sale consideration with a view to avoid stamp as well as registration charges, thus the sale-deed was executed for a consideration of Rs. 15,000/-. Further case of the plaintiff was that he collected material for raising additional construction on the spot but when he went there he found that the foundations had been dug out by proforma defendants 3 & 4, thus the former was constrained to file of the trial of this case these proforma defendants put up a plea that they had purchased the suit property much before the plaintiff purchased it and thus they put up a superior title as defence in that case. In this background a suit for permanent prohibitory injunction filed by the plaintiff came to be dismissed and the plaintiff has filed the present suit. Besides Rs. 21,000/- stated to have been paid by the plaintiff to defendant, he also claimed the amount of registration and stamp charges which came to Rs.1826.40. Plaintiff claims to have been defrauded as well as cheated by the defendant and when demand was made orally as well as by legal demand notice, on the refusal of the defendant, suit came to be filed.

3. Record of the case shows that defendant did not file any written statement during the course of trial of the suit in the court below, although proforma defendants 3 & 4 filed a joint written statement wherein they repudiated the claim of the plaintiff and stated that they had acquired title to the suit land much before the plaintiff claims to have purchased it on 9-2-1983. It may also be appropriate to reproduce the prayer made in the plaint:

"It is, therefore, humbly prayed that the Honble Court may be pleased to decree the suit of the plaintiff for the recovery of Rs.22,826.40 np in favour of the plaintiff and against the defendant No.1 with interest at the rate of 12% from the date the defendant No.1 took money from the plaintiff and further interest at the rate of 12% may also be awarded to the plaintiff against the defendant No.1 till the final realisation of the amount with costs.

" Thus it is clear that no relief was claimed by the plaintiff against defendants 2 to 4 and similar is the tenor of the plaint in other paras thereof.

4. Shri Tak, learned counsel appearing for the appellant/defendant, has forcefully urged that the decree in question is obtained by fraud practised by plaintiff in collusion with proforma defendants 3 & 4, as defendant was never served with summons in the suit. Further, according to learned counsel for the plaintiff, trial court has erred in decreeding the suit of the plaintiff as no

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