JUDHISTIR DAS Vs. EKAMRA CHAUDHURY AND ORS.

JUDGEMENT

(1.) PLAINTIFF is the Appellant and this second appeal is from the reversing decision of the lower Appellate Court by which the suit has been dismissed. The reliefs claimed in the suit were for a declaration that the decree passed in O.S. 267/50 was fraudulently obtained and is not binding on the Plaintiff and that the Plaintiff is in possession of the suit -property which is a house site measuring 0.11 decimals appertaining to plot No. 1218, and that such possession be confirmed, and the Defendants be permanently restrained from executing the impugned decree and taking possession of the same.

(2.) THE disputed land is the ancestral property of the Plaintiff and of pro forma Defendants 5 to 9. The Plaintiff is staying in the house standing thereof. Defendants 1 to 4 instituted T.S. 267/50 for declaration of title, confirmation of possession, or in the alternative for recovery of possession of the suit -property claiming the same as part and parcel of their plot No. 1220 and for permanent injunction. This title suit No. 267/50 was decreed and title of Defendants 1 to 4 was declared. The Defendants in that suit, viz., the present Plaintiff and Defendants 5 to 9 were directed in that decree to remove their house materials within 15 days. The present Plaintiff was impleaded in the earlier suit as Defendant -5, and was described as a minor though he was major at the time. He was represented through his uncle though his mother was alive at the time. No notice of -the suit was served either on the Plaintiff or his natural guardian, the mother, and the decree was obtained in T.S. 267/50 by deliberately and fraudulently omitting to serve notice of the same on the present Plaintiff. There was thus no proper representation of the Plaintiff in that suit and the decree passed therein is not binding upon him. He came to know about the said suit on 4 -9 -1957 when he got notice in execution case No. 224 of 1958, in which Defendants 1 to 4 were levying the execution of the decree passed in T.S. 267/50. In the alternative, if for any reason the decree in T.S. 267/50 cannot be declared void or inoperative, then a declaration may be given that the Plaintiff has acquired title to the suit -property by adverse possession. This, in short, is the Plaintiff's case.

(3.) THE trial Court decreed the suit on the following findings: