VIMALA BAI (DIED AND DELETED) Vs. SHIVNARAYAN

JUDGEMENT

(1.) The substantial question of law involved, formulated and to be answered in the second appeal preferred by defendants No.1 to 6 is as under: -

(2.) The sole plaintiff filed suit for declaration of title, partition and possession with regard to the suit land mentioned in Schedule A attached with the plaint, total area 2.517 hectares and claimed share in the suit property in which after due service of summons, the defendants were proceeded ex parte and after the affidavit under Order 18 Rule 4 of the Civil Procedure Code was filed and the plaintiff was examined, the trial Court after appreciating oral and documentary evidence on record, dismissed the suit. It is pertinent to mention here that Shivnarayan, the plaintiff herein, also filed Civil Suit No.41-A/2002 (Shivnarayan Vs. Vimala Bai and others) and both the suits were heard separately and decided separately by separate judgments and both the suits were dismissed. When appeal was preferred the first appellate Court allowed the appeal and also read into the evidence recorded in Civil Suit No.41-A/2002 finding some technical difficulty. Now, the second appeal has been preferred.

(3.) Mr. Ravindra Sharma, learned counsel appearing for defendants No. 2 to 6 / appellants herein, would submit that the first appellate Court has granted decree in favour of the plaintiff only on the ground that the defendants remained ex parte before the trial Court and did not file any written statement and did not lead any evidence under Order 8 Rule 10 of the Civil Procedure Code which cannot be granted and which is unsustainable and bad in law.