Harnaraian Pandey vs Nand Keshwar Pandey and others

Ross, J.—This is an appeal by the plaintiff against the decree of the Additional Subordinate Judge of Saran affirming the decision of the Munsiff of Siwan, dismissing the plaintiff''s suit. The subject matter of this litigation is a plot of land measuring 4 bighas 14 kathas and 2 dhurs. The plaintiff and the three defendants are brothers. The plaintiff alleges that they separated long ago and that after the separation he acquired this property now in suit; that during the previous survey operations the land was recorded under the names of all the brothers jointly whereupon the plaintiff brought a suit for declaration of his title and got a decree on the 16th of December 1909; not withstanding that decree the lands hare again been entered in the name of all the brothers jointly in the recent Settlement proceedings and consequently the plaintiff has brought this suit for confirmation of his possession; or, if he be considered to have been dispossessed, then for recovery of possession.

The defence was that the defendants and the plaintiff were separate in mess only but joint in business. With regard to the previous suit all that the defendant No. 1, who was the contesting defendant and is now the respondent, said was that he had no knowledge of the suit and received no summons, that the defendants Nos. 2 and 3 were in concert with the plaintiff and that if they had done any act in concurrence with each other it could not be injurious to the defendant.

The Munsif in dealing with that previous litigation referred to the evidence of the service of summons on the defendant and discovered certain discrepancies in it. At the end of his judgment he said that "the defendant No. 1 is not bound by the exparte decree setup by the plaintiff". The learned Subordinate Judge in dealing with the same question says that the plaintiff obtained an exparte decree but probably without the knowledge of defendant No. 1. He then refers to the evidence of the service of summons and concludes that "the ex parte decree was obtained fraudulently behind his back" and it was never put into execution; it was therefore of no consequence and could not bind the defendant No. 1.

The main ground taken in the present appeal is that as the title of the plaintiff was declared by the decree of 1909 and that decree has not been impugned on the ground of fraud, effect, must be given to it and the present appeal must be decreed. The learned Vakil for the respondent says that in paragraph 5 of the written statement fraud has been alleged and the Subordinate Judge has found fraud. Now paragraph 5 of the written statement, in my opinion, does not amount to a proper pleading of the fraud. The main allegation is that the defendant did not receive summons. He also alleges that the defendants Nos. 2 and 3 are in concert with the plaintiff evidently meaning, in the present litigation. The written statement then says. "If they had done any such act in concurrence with each other it cannot be injurious to the defendant". This is not even an allegation of fraud. The evidence discussed by the Subordinate Judge is only the evidence of the service of summons. The finding is non-service; but that is no evidence of fraud and the dogmatic statement that the decree was obtained fraudulently" does not to my mind amount to a proper finding that the decree has no effect because of fraud.

In was contended on behalf of the respondents on the authority of Ram Lochan Soor v. Nitya Kalee Debia 12 W.R. 211 that no legal decree can be passed exparte without the Court being satisfied of the due service of the summons. There is no doubt about the proposition; but in the present case what we have is that the Court in the present litigation is not satisfied that the summons was properly served in the suit in which the exparte decree was passed; but there is nothing to indicate that the Court which tried the suit of 1909 had not satisfied itself of the service of summons and it must be presumed that the Court was satisfied before the decree was made. In my opinion the decree of 1909 concludes the matter.

The appeal must be decreed, with costs, the decree of the Court below set aside and the plaintiff''s suit decreed with costs throughout.