JAI DEV SINGH Vs. HAZARA SINGH

JUDGEMENT

(1.) Jai Dev Singh filed a suit for possession of agricultural land measuring 43 Bighas and 13 Biswas against the legal representatives of Ajmer Singh, and Hazara Singh, Dasonda Singh and Jaswant Singh on the plea that he was born on 4-10-1950 and left the village when he was only 8 years old and when he came back sometime before the filing of the suit in 1980, he found that his land was sold to Ajmer Singh on 2-7-1958 and thereafter the said Ajmer Singh sold the same to the remaining three vendees. Ajmer Singh would be called the first vendee and the remaining defendants would be called the second set of vendees. He pleaded that somebody impersonated as Jai Dev Singh and made the sale in favour of Ajmer Singh which conveyed no title to him and similarly the second set of vendees also did not get any title. The suit was proceeded ex parte against the second set of vendees. The legal representatives of the first vendee filed the written statement admitting the plaintiffs claim. Accordingly on 9-9-1981 an ex parte decree for possession of agricultural land was passed in favour of Jai Dev Singh and against all the defendants. First of all the second set of vendees filed an application for setting aside the ex parte decree on the plea that they were not served in the suit and had sufficient cause for not appearing in the suit. However, the application was dismissed in default. Within the period of limitation, the second set of vendees filed a regular appeal against the ex parte judgment and decree. That appeal came up for hearing before the Additional District Judge, who, by a well considered order dated 3-10-1983, found that the second set of vendees were not served in the suit and, therefore, the ex parte proceedings, against them were illegal. Consequently, the appeal was allowed, the ex parte decree was set aside and the matter was remitted to the trial Court for fresh decision in accordance with law. The plaintiff has come to this Court in this appeal.

(2.) After hearing the learned counsel for the parties and on perusal of the record, I am of the view that there is no merit whatsoever in this second appeal from the order. The sole argument of the learned counsel for the plaintiff was that once having resorted to an application under O.9, R.13 of Civil P. C. to have the ex parte decree set aside and having failed therein, the second set of the vendees could not file a regular appeal against the ex parte judgment and decree. For this proposition, reliance was placed on Munassar Bin Jan Nisar Yarjung v. Fatima Begum, AIR 1975 Andh Pra 366, and Mathai Mathu v. KuttiKunju Kovilammu ThankaKavilamma, AIR 1953 Trav Co 416. As against the above, the counsel for the second set of vendees relied on Ramballabh Jasraj Marwadi v. Dharamsi Jetha and Co., AIR 1937 Nag 268 and contended that in case no determination of the matter under O;9, R.13 of the Civil P. C. takes place on dismissal in default, the Appellate Court from the ex parte decree can go into the matter whether the appellants are served or not and whether the ex parte proceedings were rightly taken or not.

(3.) Considering this matter, I am of the view that the two decisions relied upon on behalf of the plaintiffs are clearly distinguishable as in both these cases there was determination of proper service of the plaintiffs and about taking ex parte proceedings on merits. On those facts, the same matter cannot be raked up in appeal. The facts of the present case are identical with Ramballabh Jasraj Marwadi's case (AIR 1937 Nag 268) (supra). Here, the application under O.9, R.13 of the Civil P. C. was dismissed in default and there was no determination that the second set of vendees were properly served and that the ex parte proceedings were properly taken. If there had been a decision in that application on merits, then it could certainly be argued that it was not open to the second set of vendees to take up the matter again in appeal from the decree following the decision in Ramballabh Jasraj Marwadi's case (supra). Therefore, I hold that the matter was rightly dealt with by the lower Appellate Court.