Anita Suresh Salunkhe & Ors. vs Swati Malhari Ghule & Ors.

The appellant/defendant no.2 impugns judgment and decree dated 20.09.2019 passed by District Judge, Sangli in Regular Civil Appeal No.301/2013, thereby reversing judgment and decree dated 04.05.2013 passed by Civil Judge Junior Division, Palus in Regular Civil Suit No.615/2008 and granted decree of partition and separate possession in favour of plaintiff no.2. (Hereinafter, parties are referred to by their original status in suit for the sake of convenience and brevity).

The respondents/plaintiffs instituted Regular Civil Suit No.615/2008 before Civil Judge Junior Division, Palus seeking decree of declaration, perpetual and mandatory injunction. It was contention of plaintiffs that suit properties are ancestral joint Hindu family properties of plaintiffs and defendants. After death of Malhari i.e. husband of plaintiff no.1 and father of plaintiff no.2, they were residing in suit property and also cultivating suit land described in paragraph no.1A of plaint. However, taking disadvantage of mutation entries, defendant no.1 executed sham and bogus sale deed dated 29.03.2006 in favour of defendant no.2. The sale deed is executed without consent of plaintiffs. Therefore, such sale deed is not binding on her right. The defendant no.2 filed written statement and refuted acquired properties of defendant no.1-Sarsabai. She was generating income from selling vegetables and purchased suit properties by registered sale deed dated 20.05.1981. The defendant no.1 contends that under registered sale deed dated 02.03.2006, he has purchased suit properties from defendant no.1 and acquired title. 3. The Trial Court framed issues, recorded evidence and finally dismissed suit holding that plaintiffs failed to prove their possession over suit properties.

Aggrieved plaintiffs filed Regular Civil Appeal No.301/2013. The Appellate Court concluded that suit properties were owned by Tadoba i.e. husband of Sarsabai and father of Malhari i.e. plaintiff no.1’s husband. Therefore, plaintiff no.2 has one half share in suit properties. Aggrieved defendant no.2 filed present Second Appeal under Section 100 of Code of Civil Procedure.

Mr. Umesh Mankapur, learned Advocate appearing for appellant submits that address of appellant was shown in Appeal Memo as resident of Tupari, Taluka Palus, District Sangli. She was never served with notice of Appeal. However, she is shown to have been served through newspaper publication notice on aforesaid address. Mr. Mankapure would further invite attention of this Court to address of appellant/defendant no.2 shown in cause title of suit, wherein she is shown resident of Tupari, Taluka Walwa, District Sangli. According to Mr. Mankapure, service of notice of Appeal by way of paper publication to appellant cannot be accepted as valid service. Eventually, ex-parte decree passed by Appellate Court is liable to be quashed and set aside. He would submit that there was valid service of notice to respondent no.4.

In light of aforesaid submissions, following substantial questions of law are pressed into service:

Perusal of title clause of plaint in Regular Civil Suit No.615/2008 shows that address of appellant is shown as resident of Tupari, Taluka Walwa, District Sangli. Accordingly, she was served with suit summons and filed written statement and contested suit, which was eventually dismissed by Trial Court. The plaintiffs filed Appeal before District Judge, wherein address of respondent no.2 is shown as resident of Tupari, Taluka Palus, District Sangli. The Court notice could not be served on said address, but shown to have been served through paper publication and marked ex-parte. The District Judge allowed Appeal and passed ex-parte decree against appellant.

Order V of Code of Civil Procedure deals with service of summons. Clause (1) of Rule 20 of Order V of Code of Civil Procedure provides for alternate service by affixing notice on some conspicuous place in the Court-house and conspicuous part of the house of defendant/respondent. Clause (1A) of Rule 20 provides for notice by advertisement in newspaper. The mode of alternate service by affixing notice can be adopted only after service in terms of Clause (1) of Rule 20 of Order V is attempted.

In present case, there is nothing to indicate that aforesaid steps were followed before issuing notice by advertisement in daily newspaper. Apart from aforesaid defect, address shown in title clause of Appeal Memo is incorrect and inconsistent with address shown in title clause in plaint. Apparently, ex-parte order passed against appellant in pursuance to service of notice through newspaper publication cannot be countenanced. On this count, only ex-parte decree is liable to be quashed and set aside. Hence, substantial questions of law are answered in negative. Hence, following order: