KSHITISH CHANDRA KAYAL Vs. ABINASH CHANDRA HALDAR

JUDGEMENT

(1.) This is an appeal by the defendant No. 1 from a judgment of reversal and it arises out of a suit for setting aside an ex parte decree on the ground of fraudulent suppression of summons.

(2.) The plaintiff's case stated briefly is that he purchased the eastern 08 acre of plot No. 1231/1849 measuring .12 acre and appertaining to khatian No. 2722 of Mouja Khari P. S. Mathurapur in the district of 24 Parganas from the previous owner Bipin Haldar by a registered kobala dated 23rd Sraban 1368 B. S. (8.8.61) and has been possessing the said land since then by amalgamating it with his homestead to its adjacent north. The defendant No. 1 has or had no right, title or interest in the said bata plot. But the defendant No. 1 brought Title Suit No. 453 of 1969 in the first Court of Munsif at Diamond Harbour with false claims of title to and possession of be disputed bata plot 1231/1849 against the plaintiff and proforma defendants and after fraudulently suppressing the summons in collusion with the process server obtain an ex parte decree against the plaintiff. The plaintiff came to know of the ex parte decree from his co-villager Probodh Koyal on 21.3.72 and had definite knowledge about it and its fraudulent nature after taking certified copies of the judgment and decree of that suit on 30.3.72. Thereafter the present suit was instituted on 8th April, 1972.

(3.) The defendant No. 1 alone has contested the suit by denying in the written state-the allegations made in the plaint. He has averred that the disputed bata plot along with other land was sold by Bipin Haidar to Dulal Koyal by a registered kobala dated 1st Asher 1362 B. S. But the said bata plot was not included in that kobala through mistake. The defendant No. 1 purchased the disputed bata plot and other land from Dulal Koyal by a kobala dated 3rd Chaitra 1364 B.S but the mistake of non-inclusion of the disputed bata plot , was repeated in the defendant No. 1's kobala also. The defendant No. 1 was in possession of the eastern .08 acre of the disputed bata plot since his purchase and the plaintiff threatened to dispossess him from 25th Asher 1376 B S. So, he brought the Title Suit No. 453 of 1969 against the plaintiff and the proforma defendants. In that suit the summons was duly served on the present plaintiff and the proforma defendants but they did not contest the suit. Thereafter on coming to know of the non-inclusion of the disputed bata plot in the defendant No. 1's kobala the plaintiff has brought the present suit on the basis of a collusive sale deed from Bipin Haldar