MURLIDHAR Vs. MATHURA PRASAD

JUDGEMENT

(1.) THIS Miscellaneous Appeal is directed against the order dated 19-9-1995 in Civil Appeal No. 57-A/1992 by Fifth Additional District Judge, Sagar, whereby the appeal has been dismissed as abated.

(2.) THE relevant facts necessary for decision of this appeal, stated in brief, are : The plaintiff/respondent No. 1 Mathura Prasad purchased the suit-property by registered sale-deed dated 16-9-1971 from defendant No. 5 Gajadhar Prasad. The suit-house was said to belong to the Joint Hindu Family property consisting of the vendor Gajadhar Prasad as well as his five other brothers, who were all made defendants in the suit. The plaintiff/respondent No. 1, therefore, prayed that the Joint Family property be partitioned and the suit-house purchased by the plaintiff Mathura Prasad may be allotted in the share of his vendor Gajadhar Prasad, defendant No. 5, who holds 1/6th share in the Joint Hindu Family property.

(3.) THE suit was resisted by defendant Nos. 2 and 3. Defendant Nos. 1, 4, 5 and 6 remained absent despite service of summons to them and, therefore, were ordered to be proceeded ex parte, as would be clear from the order-sheets dated 16-11-1976 and 28-3-1977 of the Trial Court. The defendant No. 5 Gajadhar, the vendor of the plaintiff Mathura Prasad appeared in the suit, but he did not engage a counsel. Though he filed his written statement therein, but he admitted the claim of the plaintiff. In the later stages of suit, the said vendor remained absent and was directed to be proceeded against ex parte by order dated 5-10-1983. It may be mentioned here that the said defendant No. 5 Gajadhar Prasad was also examined by the purchaser-plaintiff Mathura Prasad as his witness. In his statement, Gajadhar Prasad supported the claim of the plaintiff Mathura Prasad and admitted that he had sold the suit-house to the plaintiff.