MANGALA KHADA Vs. GURU ADHARI

JUDGEMENT

(1.) The point for decision is, whether a son living jointly with his father can avoid an ex parte decree for title and possession against his father on the ground that the property involved being ancestral property, the decree was not binding on him.

(2.) EARLIER Title Suit No. 43 of 1972 was filed by present defendant No. 1 against the father and uncles of the present plaintiffs who were defendants 2 to 4 in that suit. Though they filed joint written statement, yet thereafter, remained absent and ultimately an ex parte decree was passed. A misc. case under Order 9, Rule 13, CPC to set aside the ex parts decree was also dismissed for default. The matter was not thereafter taken up before any higher forum. The decree was executed and delivery of possession was given to the plaintiff in the suit in Execution Case No. 314 of 1974 of the Court of Subordinate Judge, Jeypore. Present plaintiff No. 1 (son of defendant No. 2 in the earlier suit) has come up with the present suit for a declaration that the decree in the earlier suit is not binding on him since it was the result of collusion between the plaintiff and the defendants. He also seeks for delivery of possession of the land after evicting the defendants therefrom in the present case.

(3.) THE lower Court decreed the plaintiff's suit on the finding that in the earlier suit there was no specific finding on the issues framed. Secondly, the property being the joint family property, the present plaintiff having not been a party, the decree was not binding. The lower appellate Court reversed the above finding that the plaintiffs failed to prove either fraud or concision for setting aside the ex parte decree and secondly the property was hot the ancestral property it the hands of defendant No. 2 in that suit (plaintiff's lather) and therefore, the present plaintiffs could not claim for setting aside the decree on the ground that it was the ancestral property.