KARNAIL SINGH Vs. JAGDISH KAUR

JUDGEMENT

(1.) One Norati had two daughters, namely, Niranjan Kaur and Bachan Kaur and one son named Bhagwant Singh, who had predeceased her. Bhagwant Singh had a daughter Jagdish Kaur and his wife was Ishar Kaur. After the death of Bhagwant Singh and Ishar Kaur, Jagdish Kaur filed a civil suit on September 27, 1974, against Bachan Kaur, Niranjan Kaur, Gurnek Singh, Pritam Singh, Sant Singh, Malkiat Singh, and Karnail Singh for joint possession of l/3rd share of the land described in the plaint, total area being 124 kanals. The suit was filed with the allegations that Smt. Norati widow of Gurbux Singh was owner in possession of the suit land and she had died about three years prior to the filing of the suit. Norati had two daughters, namely Niranjan Kaur and Bachan Kaur and one son Bhagwant Singh, who had predeceased her leaving behind Jagdish Kaur and Ishar Kaur. It was further alleged that at the time of death of Norati, the plaintiffs were having equal rights to succeed in the estates of Norati along with Niranjan Kaur and Bachan Kaur. It was further alleged that after the death of Norati, Bachan Kaur and Niranjan Kaur and some other defendants had taken wrongful possession of the suit land whereas defendant No. 3 Gurnek Singh son of Niranjan Singh was the mortgagee of the part of the suit land. Only Bachan Kaur contested the suit whereas other defendants were proceeded against ex parte. Bachan Kaur had taken a defence that Norati had gifted her 88 kanals out of the total land and she had become owner of that land by virtue of the written gift deed. This plea of Bachan Kaur was accepted by the trial Court that out of 124 kanals of land, 88 kanals of land was of Bachan Kaur on the basis of the gift deed. Decrees qua l/3rd share of the rest of the land measuring 38 kanals 19 Marias comprised in Khasra No. 16//137(7-B), Khewat Khatoni Khasra No. 16//18/2(4-16), 19/1(0-8), 23/1(2-6), 24/1/1(0-2), Khasra No. 16//17/l(0-8), Khasra No. 8//21(3-19), 24(0-14), ll//l/2(2-17) and 3(8-0), 4(7-1), was granted in favour of the plaintiff on February 9, 1978.

(2.) Karnail Singh one of the defendants filed an application under Order 9, Rule 13 of the Code of Civil Procedure on August 19, 1978, for setting aside the ex-parte decree against him on the allegation that he had not been duly served in the suit. The trial Court as well as the appellate court came to the conclusion that no case had been made out for setting aside the ex-parte decree, hence the present petition.

(3.) Learned counsel for the petitioner argued that both the courts below have held that along with the summons, the copy of the plaint was not served on the present petitioner Karnail Singh and if that is so, the petitioner cannot be deemed to have been duly served in the suit and consequently, the ex-parte decree qua him was liable to be set aside. In support of his contention, learned counsel relied upon a Division Bench Judgment of this Court reported as Babu Ram v. Satish Kumar Rawal, (1991-2)100 P.L.R. 234. It may also be noticed that the appellate Court had observed that the application under Order 9, Rule 13 C.P.C. was time-barred as nothing was said in the application as to how the petitioner came to know about the ex-parte decree on August 19, 1978. It may further be observed here that when this revision petition was admitted way back in the year 1982, the dispossession of the petitioner was stayed.