A defendant in a civil suit cannot be deemed served without proper verification, especially when there are implications of minor representation.

CAV JUDGMENT

Challenging judgment and decree dated 18.08.2012 passed by Senior Civil Judge & JMFC., Channapatna, Ramanagara District, in R.A.no.13/2012 and judgment and decree dated 23.06.2010 passed by Addl. Civil Judge (Jr.Dn.)Channapatna, in O.S.no.88/2009, this appeal is filed.

2. Brief facts as stated are that Appellant was defendant no.1 in suit filed by respondent no.1 - plaintiff for declaration that judgment and decree dated 10.01.2008 passed by Prl. Civil Judge (Jr.Dn.) & JMFC., in O.S.no.137/2004 as not binding on plaintiff and for permanent injunction restraining defendants, their agents etc. from interfering with plaintiff's peaceful possession and enjoyment of land bearing Sy.no.73/3, measuring 02 acres 12 guntas situated at Brahmanipura village, Kasaba Hobli, Channapatna Taluk ('Suit Property' for short).

3. In plaint, it was stated plaintiff purchased suit property on 11.08.2004 from defendants no.1 to 4 for valuable consideration. At that time, plaintiff no.1 (sic. defendant no.1 – Ramesha) was minor and represented by defendant no.2 as guardian. From 11.08.2004, plaintiff was in possession, paying kandayam and cultivating it. It was stated, defendants no.1 and 3 to 6 were children of defendant no.2, had no subsisting right over it. But on 20.06.2009, defendant no.1 came near suit property and asked plaintiff to deliver possession. When plaintiff resisted, defendant no.1 disclosed about decree obtained by him against other defendants and pendency of final decree proceedings.

4. On enquiry, plaintiff came to know that defendants had got defendant no.1 to file OS no.137/2004 for partition etc., and allowing it to be decreed without contest, and filing of FDP no.4/2009. It was alleged said suit was collusive, null and void and not binding on plaintiff. Though, summons was served on defendants, they did not contest or disclose sale in favour of plaintiff and collusively allowed suit to be decreed. Moreover, as plaintiff was not party to suit, decree obtained was not binding on him. As defendant no.1 was trying to dispossess plaintiff from suit property, present suit was filed.

5. Despite service, defendants did not appear. They were placed ex parte.

6. Based on pleadings, trial Court framed following issues:

1. Whether the plaintiff is entitled for suit claim relief as prayed by him?

2. What decree or order?

7. To prove his case, plaintiff examined himself as PW1 and got marked Exs.P.1 to 13. There was no evidence led by defendants, who were placed ex-parte.

8. On consideration, trial Court answered issue no.1 in affirmative and issue no.2 by decreeing suit and holding decree in OS no.137/2004 dated 10.01.2008 as not binding on plaintiff and permitting him to participate in final decree proceedings by getting himself impleaded and seek for allotment of suit property to his share, under equity. It also granted decree of permanent injunction restraining defendants from interfering with plaintiff’s peaceful possession and enjoyment of suit property.

9. Aggrieved, defendant no.1 filed RA no.13/2012 on various grounds. Based on contentions urged, first appellate Court framed following points:

1. Whether the appellant has made out sufficient grounds to interfere with the judgment and decree of the trial Court?

2. What order?

10. On consideration, it answered point no.1 in negative and point no.2 by dismissing appeal. Aggrieved, this appeal is filed.

11. Sri A. Lourdu Mariappa, learned counsel for defendant no.1 submitted, appeal was against concurrent error committed by both Courts. It was submitted, trial Court decreed suit placing defendants ex parte, without verifying proper service of summons. It was submitted, as on date of execution of Ex.P1, p