JOGENDRA BHAGAT Vs. JAISHREE DEVI, BAITAHI

JUDGEMENT

(1.) THE order dated 14.5.2004 passed by the Addl. District Judge VI, Muzaffarpur in Misc. Case No. 1/95 is under challenge in this appeal. The learned Addl. District Judge by the impugned order has dismissed the miscellaneous case which had been filed by the appellant -petitioner under Order 41 Rule 21 C.P.C. for setting aside the ex -parte judgment in Title Appeal No. 32/1993.

(2.) THE facts giving rise to this appeal are as follows: '' Partition Suit No. 28/1975 was filed by the respondent/plaintiff claiming her one third share in the property. The said suit after contest was dismissed. The plaintiff/ respondent thereafter preferred an appeal bearing Title Appeal No. 32/1993. The said appeal was heard ex parte and an ex parte decree was passed on 23.12.1994 in favour of the plaintiff/respondent by the 5th Addl. District Judge, Muzaffarpur. The appellants/defendants knowing about the said ex parte judgment in the title appeal filed Misc. Case No. 1/1995 but the said case after contest was dismissed as stated above. Being aggrieved by the said order the present appeal has been filed.

(3.) LEARNED cousnel appearing for the respondent, on the other hand, contended that the learned court below has properly evaluated the evidence adduced on behalf of both the*parties.. Besides this, the evidence of respondent/O.P. is also supported by the documentary evidence i.e. service reports showing notices served against some of the respondents (Ext. B series) and the receipts from the Post Office showing issuance of registered notice and registered A.Ds. Apart from this he also submitted that.the notices were served on the G.A.L of the minor respondents also and the said Advocate has been examined on behalf of the respondent/O.P. and he has also supported the case of the O.Ps. and has proved issuance of notice through certificate of posting as against the minor respondents of the said appeal. The order -sheet drawn by the Pleader Commissioner for carving out a portion of the disputed land has also been filed which would show that both the parties had been noticed to remain present at the time of carving out Takhta. Therefore, learned counsel for the respondent/O.P. plaintiff in the suit submitted that after considering the evidence the court below has rightly came to the finding that the appellants/defendants could not show that notices were not served on them. Therefore, there is nothing wrong in the judgment and hence, this appeal is fit to be dismissed.