BISHNU KUMAR MODI Vs. SHEKHAR MODI

JUDGEMENT

(1.) This second appeal has been filed against the judgement and decree dated 18.1.2010, passed by learned Additional District Judge, ( FTC), Dumka, in Title ( Partition) Appeal No. 30 of 2007, confirming the judgment and decree dated 2.9.2004, passed by learned Subordinate Judge-1, in Title ( Partition) Suit No. 29 of 2001.

(2.) It is submitted on behalf of the appellant that the partition suit brought by the plaintiffs-respondents could be decreed on the basis of its own strength and not on the basis of weakness of the defendant-appellant.

(3.) It appears that this partition suit was filed by the plaintiff- Shekhar against Om Prakash-defendant first party and Savitri Devi, Bishnu and Kishan-defendant as second party, claiming partition of his 1/3rd share in the schedule property. Kishan is own brother of Bishnu and son of Savitri Devi. Defendants appeared but only Om Prakash and Kishan filed written statement and ultimately Savitri Devi and Bishnu were debarred from filing written statement. The defendants-Om Prakash and Kishan accepted the contention of the plaintiff that he was adopted by registered deed dated 12.3.1982 by Satyanarayan. They also claimed partition of their 1/3rd share. Accordingly, no issue was framed with regard to adoption. The appellants-Bishnu and Savitri Devi did not take any step in the suit even after they were debarred from filing written statement. They did not chose to cross examine witnesses. Ultimately, preliminary decree was passed. Appellant refused to take notice in the execution case. The learned court below has rightly observed that the appellant had full knowledge about all the proceedings but deliberately did not take part in the proceeding only with a view to delay the matter. After a delay of about 764 days, the appellant preferred appeal before the learned appellate court. In these circumstances, it can not be complained that no decree could be passed in favour of the plaintiff-respondent.