PARAS NATH Vs. RAM JEE

JUDGEMENT

(1.) THE instant appeal has been filed under Or.XLIII, R.1(u) of the Code of Civil Procedure (hereinafter referred to as 'Code') against the judgment and order dated 26.2.2000 by which the Civil Appeal No. 45 of 1998 preferred by the plaintiff -respondent (Ram Jee), who is now represented through his legal representatives, was allowed by the Court of XIVth Additional District Judge, Varanasi thereby setting aside the judgment and decree dated 24.1.1998 passed by the Court of Civil Judge (Jr. Div.), Varanasi in Original Suit No. 564 of 1981 and remanding the matter to the Trial Court with direction to decide the suit on merits. 2. The facts, in brief, are that the defendant -appellant (Paras Nath @ Goonga) had instituted a Suit No. 358 of 1977 in the Court of Deputy Collector (Revenue), Varanasi, under section 229 -B of the U.P. Zamindari Abolition and Land Reforms Act, for declaration that he is a co -bhumidhar/co -sirdar of the disputed property having one -sixth share along with defendants first set (Ram Jee S/o. late Kanhaiya, who is the plaintiff -respondent in this appeal); Bharat Lal; Chature Jee; Gopal Jee; Prabhu Jee all sons of Late Nanku; and Jagan Nath S/o. Beer. It was also prayed that a direction be issued to the authorities to record his name as such. The case set up in that suit was that the disputed land, which was situated, in City (proper) of Tehsil and District Varanasi, was sirdari of Kanhaiya (the predecessor -in -interest of the plaintiff -respondent in this appeal), Nanku and Jagannath, all sons of Beer Koeri and each one of them had one third share. Paras Nath alleged that Kanhaiya, in his life time, had created sub -tenancy right over one half portion of his one third share in the property in his favour and consequent to the abolition of zamindari, by notification dated 1.7.1966, under the U.P. Urban Areas Zamindari Abolition Act, he became a co -bhumidhar to the extent of one -sixth share and was entitled to be declared as such. In that suit a joint written statement was filed by the defendants first set, namely, Ram Jee (the plaintiff -respondent in this appeal), Bharat Lal, Chatur Jee, Gopal Jee, Prabhu Jee and Jagannath admitting the claim of the plaintiff. Consequently, by judgment and decree dated 9.8.1977, Suit No. 358 of 1977 was decreed. On 8 -9.3.1978, Ram Jee (plaintiff -respondent in this appeal) filed an application, purportedly under Or.IX, R.13, C.P.C., alleging therein that he was not served with summons of Suit No. 358 of 1977 and that the plaintiff of that suit in collusion with the rest of the defendants, by playing fraud, manipulated service of summons on him and thereby obtained the decree dated 9.8.1977 of which knowledge was received by him on 1.3.1978 when the record was examined. Ram Jee further alleged that his father (Nanku) had instituted suit No. 563 of 1968 in the Court of Judge, Small Causes, Varanasi which was decreed and in which connection an Execution No. 298 of 1976 was pending wherein Ram Kishun (the father of Paras Nath Goonga -defendant -appellant of this appeal) was appointed Supurdar, against whom proceedings are also continuing. It was alleged that the decree has been obtained by playing fraud on Court and, therefore, the same be recalled.

(2.) THE above application of Ram Jee was rejected by the Asst. Collector, Ist Class/Deputy Collector (Revenue), Varanasi by order dated 26.2.1979 on ground that there was a signed vakalatnama and a written statement, purported to have been signed by Ram Jee, on record, and that Ram Jee had not denied his signature either on the vakalatnama or on the written statement, therefore, it would be deemed that he had complete knowledge of the proceedings since 15.7.1977 i.e. the date of filing of the vakalatnama and, as such, the application to set aside the judgment and decree was barred by limitation. Aggrieved by the rejection of his application, Ram Jee preferred an appeal under section 331 of the U.P. Z.A. & L.R. Act, which was dismissed by judgment and order dated 14.4.1981 passed by the Additional Commissioner, Varanasi Region, Varanasi thereby affirming the order of the Trial Court.

(3.) THE defendant -appellant contested the suit pleading, inter alia, that the suit was barred by principles of res judicata, inasmuch as, having failed to secure recall of the decree by filing application before the Revenue Court on ground of non service of summons, the plaintiff had no right to bring a fresh suit to cancel the decree on ground that summons were not served on him. It was also pleaded that the limitation for instituting a suit to cancel a decree is three years from the date of knowledge of the decree (vide Article 59 of the Schedule to the Limitation Act) and as, admittedly, the knowledge of the decree was received on 1.3.1978, whereas the suit for its cancellation was instituted on 27.5.1981, therefore it was beyond the period of limitation and, as such, was barred by limitation. Based on the aforesaid pleas, the Trial Court framed issue Nos. 7 and 8, as follows: - -