LAXMIDHAR BISWAL Vs. DURYODHAN PRADHAN

JUDGEMENT

(1.) This appeal has been filed challenging the judgment and decree passed by the 1st Additional District Judge, Puri in RFA No. 22-66 of 2011/2010. The appeal was filed against the ex parte judgment and decree dated 20.05.2010 and 22.06.2010 respectively passed by the learned Civil Judge (Junior Division) Puri in C.S. No. 159 of 2004. The respondent as the plaintiff had filed C.S. No. 159 of 2004 in the court of learned Civil Judge (Junior Division), Puri for declaration of his right, title, interest and possession over the suit land with further declaration that the defendant has no interest over the same and also with the prayer of permanent injunction. The suit having been decreed ex parte, the defendant in the said suit, as the appellant had filed the appeal as above. That appeal having also been dismissed and therefore this move is before this Court by filing the second appeal.

(2.) The appellant in the said appeal challenges the said ex parte judgment and decree passed by the trial court on the ground that while rendering the findings as regards the fight, title and interest of the plaintiff-respondent in respect of the suit land, the trial court had not taken into account the factum of initiation of encroachment case bearing No. 25 of 2005 as also the report of the local Revenue Inspector submitted in the said proceeding. The next ground taken is that it has not been established that the lessee in the said waste land lease case and the appellant are one and same person. It was also raised as a ground of attack in the appeal that the defendant-appellant was not duly served with the notice of the suit and the suit accordingly had been disposed of, without following the legal procedure as the defendant-appellant has not been given the scope to contest the suit for which the judgment and decree cannot stand to legal scrutiny.

(3.) The lower court having gone to discard the second ground, as contended by the defendant-appellant has also gone to hold that the defendant-appellant having appeared in the suit as well as in the miscellaneous proceeding arising out of the suit by filing vakalatnama, the same has to be accepted as his appearance in the suit. So according to it, non-service of notice in the original suit does not stand as a ground to hold that the suit has been disposed of behind the back of the defendant-appellant.