RAM SANKAR PATNAIK Vs. TRINATH SABAT AND OTHERS

JUDGEMENT

(1.) This appeal has been filed challenging the judgment and decree passed by the learned Addl. District Judge (FIG), Chatrapur in R.F.A. No. 66 of 2003 confirming the judgment and decree passed by the learned Civil Judge (Jr. Divin.), Chatrapur in T. S. No. 2 of 2001. The respondents as the plaintiffs had filed the suit for setting aside the ex parte decree passed in T. S. No. 4 of 2000 by the learned Civil Judge (Jr. Divn.), Chatrapur. The suit having been decreed, the unsuccessful defendant had carried an appeal which has also yielded no fruitful result for him.

(2.) For the sake of convenience, in order to bring in clearity and avoid confusion, the parties hereinafter have been referred to as they have been arrayed in the Court below.

(3.) The case of the plaintiffs is that one Srimati Sabat, W/o Syama Sabata was the original owner of the suit property and he died issueless. On 30.8.1947, she had purchased the suit house from one N. P. Rao by registered sale-deed. Srimati after death of her husband had adopted one Radhamani as her daughter and she was staying with Srimati Sabat. Subsequently, Radhamani married to one Tirupati Sabat and plaintiff No. 1 is the son of Radhamani through that Ti. upati. Plaintiff No. 2 is the wife and plaintiff Nos. 3 and 4 are daughters of plaintiff No. 1. It is stated that the suit house was self acquired property of Srimati and on 11.9.85 Srimati bequeathed the eastern portion of the suit house to Radhamani by a registered Will dated 10.10.1991. So, Radhamani upon death of Srimati became the owner of the suit house and she died on 23.10.1993. After her death, plaintiff No. 1 with his brothers and sisters claim to have developed the said house. It is further stated that brothers and sisters of plaintiff No. 1 relinquished their interest over the eastern portion of the suit house by executing a deed of relinquishment dated 12.2.1996 and plaintiff No. 1 with his family members have been staying over there. Further claim of the plaintiffs is that Srimati was staying in the eastern portion of the suit house, towards later part of her life having shifted from other part when she was ailing, so, the western portion of the suit house was given to defendant to occupy on payment of rent of Rs. 200.00 per month and he was accordingly paying the same. Side by side, it is stated that Srimati had expressed her desire before Radhamani and others that after her death, the western portion would be developed by Radhamani though she would have no right of alienation. It is stated that after death of Srimati, defendant stopped paying the rent. So, Radhamani served notice upon the defendant to pay the arrear house rent and for eviction but the same was not paid any heed to and there was no response. On the other hand, one Jagannath Sabat, a distant relative of Srimati Sabat in collusion with the defendant filed Title Suit No. 54/92 in the Court of Civil Judge (Sr. Div.), Chatrapur. During the pendency of the suit, Jagannath and Radhamani died and the suit was dismissed on 10.5.94. The plaintiff No. 1 filed the suit on 18.3.2000 for eviction for the defendant and recovery of arrear house rent. When such legal proceeding was in progress, suit notice came in Title Suit No. 4/2000 but it was defective with wrong mention of the names as G. Trinath and G. Sankuntala instead of Trinath Sabat and others. So, the notice was not received. Thereafter, the defendant in that Title Suit No. 4 of 2000 suppressing all these true facts obtained an ex-parte decree. It is thus alleged to be by way of misrepresentation in suppression of material particulars and practising fraud upon the Court. Said decree was one of injunction restraining the present plaintiffs permanently from interfering with the possession of the suit property by the present defendant. The suit for setting aside the ex-parte decree of the Title Suit No. 4 of 2000 was contested. It is stated that the plaintiffs knowingly did not receive the summon and allowed the title Suit No. 4 of 2000 to be decreed ex-parte. So there is nothing wrong on the part of the Court in passing the decree.