Shesh Mani Dubey and Others vs Smt. Kanti Devi and Others

Hon''ble Sibghat Ullah Khan, J.—Heard learned counsel for the appellants at the admission stage.

This is defendants'' second appeal arising out of O.S. no. 21 of 1995 which was decreed by Civil Judge (J.D.)/J.M. Naugarh, Siddharth Nagar on 22.1.2011 defendants appellants were directed to remove the constructions made on the land shown by letters Aa Ba Sa Da in the plaint map and to deliver possession of the same to the plaintiffs. Appeal filed against the said judgment and decree by the defendants appellants in the form of Civil appeal no. 21 of 2009 was dismissed by A.D.J. Court no. 1 Sidhartha Nagar on 25.7.2011 hence this Second Appeal.

Earlier the plaintiffs had filed O.S. no. 406 of 1993 against the defendants in respect of the same property which was in dispute in the suit giving rise to the instant Second Appeal. The said suit was for permanent prohibitory injunction and was decreed ex parte on 28.11.1994 and defendants were restrained from dispossessing the plaintiffs. In spite of that plaintiffs were dispossessed and constructions were made. Both the courts below held that judgment and decree passed in earlier suit which clearly proved that plaintiffs were in possession was binding upon the parties and defendant''s had no right to encroach upon the land in dispute.

Learned counsel for the appellant mainly argued that restoration application was filed for setting aside earlier ex parte judgment and decree dated 28.11.1994. Same argument was raised before the courts below also. However, it could not be shown by the defendants appellants that their restoration application was allowed and ex parte judgment and decree was set aside.

An ex parte decree is as much binding between the parties as a contested decree.

Accordingly, neither there is any error in the impugned finding nor any substantial question of law is involved in the Second Appeal. Accordingly, it is dismissed under Order 41 Rule 11 C.P.C.