PANDRU Vs. DHARAM SINGH

JUDGEMENT

(1.) THE appellants/plaintiffs have directed this appeal under section 100 of the CODE OF CIVIL PROCEDURE, 1908 being aggrieved by the judgment and decree dated 9-8-2004 passed by District Judge, Mandla in Civil Regular Appeal No. 1-A/97 upholding the judgment and decree dated 20-11-1996 passed by Additional Civil Judge Class-I, Mandla in Civil Original Suit No. 22-A/96 dismissing their suit filed against the respondents for declaration, perpetual injunction and possession with respect of the landed property described in the plaint.

(2.) FACTS giving rise to this appeal in short are that appellant No. 1 and his wife Smt. Suhawan (since deceased) the predecessor of appellant No. 2-A to 2-F filed a suit for quashment of the ex parte judgment and decree passed by Ist Civil Judge Class-II on dated 8-11-1977, in Civil Original Suit No. 54-A/1977, (whereby decreeing the suit of the principal defendant No. 1 (since deceased) Devlal (the predecessor in title of the respondents 1-B and C) the registered gift deed dated 5-2-1969 as alleged executed by late Punwa (the father of said Devlal) in favour of appellant No. 1 and said Suhawanbai was declared to be void, and by declaring to said Devlal to be the Bhoomiswami of the disputed land bearing Survey Nos. 28, 106, 168 315, 341, 282/41 area 28.51 acre situated at village Mohogaon described in the plaints the decree for it's possession was passed with a further prayer of declaring them (the appellants' and his wife said Suhawanbai) to be the Bhoomiswami of such disputed land and also issuing perpetual injunction restraining the respondents/defendants from any interference in their possession of the aforesaid disputed land. In alternate, the decree for possession of such disputed land is also prayed. As per further averments of the plaint the disputed property was initially belonged to Bhagati Gond, on his death in the year 1950 the same was inherited by his widow Suhagi who had only one daughter namely; Sukhri, (the mother of deceased plaintiff Suhawan). After the death of Suhagi such property was inherited by Sukhri and on her death the same was inherited by the aforesaid Smt. Suhawan, the wife of the appellant No. 1. After death of Bhagati his widow said Suhagi being old aged alone woman in the family was not in a position to look after all the affairs of the land hence, she kept one Punawa the father of deceased/defendant No. 1 Devlal to look after and cultivation of such land. Pursuant to it, in the year 1953 such Punawa got mutated the land in his name in the record of rights. It is further stated that by such mutation the right of Smt. Suhawan and her mother had not affected in any manner as they were cultivating such land. As per further averments said Punawa by admitting the right of the appellants' over the land executed a registered gift deed dated 5-2-1969 in favour of the appellant No. 1 and his wife late Suhawan deceased plaintiff No. 2 and handed over the possession of the disputed land to them. Since then they are coming in possession of the same. Their name had already been mutated in the record. But, after death of Punawa his son said Devlal principal defendant No. 1 filed the above mentioned Civil Original Suit No. 54-A/77 for declaration and possession of the aforesaid land. The summons of such suit was never served on the appellant No. 1 and the deceased plaintiff No. 2 Suhawan. By taking advantage of their illiteracy without serving the summons of such suit on them, the suit was proceeded ex parte and ultimately, the same was decreed ex parte for declaration and possession as mentioned above. Subsequently, on receiving the notice of its execution proceedings on dated 2-10-1982, the appellant No. 1 to make the inquiry in this regard came to Court of Mandla on 4-10-1982 then on first occasion he came to know about aforesaid ex parte judgment and decree. Thereafter, on the strength of aforesaid gift deed and describing aforesaid circumstances, the impugned suit for the above mentioned prayer is filed.

(3.) ON earlier occasion vide order dated 16-7-2008, this appeal was admitted for final hearing on the following substantial question of law :- "Whether the Court below erred in not setting aside ex parte decree against plaintiff Suhavan when no evidence was available in the case that summon was served on her in Civil Suit No. 54-A/1977?"