AISHA BI Vs. M SHAMSHER KHAN

JUDGEMENT

(1.) AGGRIEVED by the judgment and decree dated 7-6-1999 passed by the City Civil Judge, bangalore in O. S. No. 507 of 1997, the defendants have preferred this Regular First Appeal under Section 96 of the Code of Civil Procedure.

(2.) THE plaintiff had filed the above suit for partition and possession of the suit schedule house property. His case as made out in the plaint is that he is the son from first wife of late Mohamad haroon Khan, whereas the first defendant is the second wife of his late father and the second defendant is the son from the first defendant. It has further been stated in the plaint that the father of the plaintiff was employed as a Head Constable in Bombay Police Department and he died intestate on 17-2-1976 while he was still in service leaving behind him the plaintiff and the two defendants as his legal heirs. The plaint further states that the first defendant had received Rs. 40,000/- towards the arrears of salary and other pensionary benefit of his late father on behalf of the family in the year 1978. According to the plaintiff out of the said amount the suit schedule property was purchased under a sale deed which was registered on 11-4-1980.

(3.) THE order sheet of the suit in question discloses that defendant 1 after service of summons had appeared in the proceedings on 27-6-1998, but the case had to be adjourned because the summons could not be served on defendant 2. The order dated 6-2-1999 shows that ultimately defendant 2 was also served and time was granted for filing the written statement by 25-5-1999. Since by 25-5-1999 no written statement was filed by the defendants, the case was posted for judgment on 7-6-1999. Even on that date neither written statement was filed nor defendant 2 appeared or filed any application seeking time for filing the written statement. Accordingly the court below by relying on a judgment of a learned Single Judge of this Court in the case of mahantaswamigalu Guru Sangana Basavana Swamigalu, Hiremath v The Chairman, Grama panchayat of Mangoli, Basavan Bagewadi, District Bijapur and Another , passed the impugned order decreeing the suit.