DEB NATH MISHRA Vs. STATE OF BIHAR

JUDGEMENT

(1.) This appeal by the defendants first party in the court below, i.e., defendants 1 and 2, is directed against the judgment and order dated 17th June, 1976, passed by Shri Bindeshwari Prasad Verma, Subordinate Judge, Katihar in title suit No. 259 of 1972,

(2.) The plaintiff, the State of Bihar, filed the afore said suit for setting aside an ex-parte decree passed by the Munsif, Katihar, title suit No 639 of 1964 on the 30th of Janaury, 1970.

(3.) The plaintiff's suit, in brief, was that the father of defendants 1 and 2 was an ex-intermediary in relation to cadestral. survey khata Nos. 139 and 140, appertaining to touzi No. 1239 of village, Katihar, which in the revision survey, have been numbered as Nos. 617 and 637. In the year 1952 the interest of the ex-intermediary vested in the State Of Bihar and, as such, defen dants No. 1 and 2 had no right, title or interest in -the suit property which is a tank having an area of 53 acres and a Bhinda, around it of 17 acres. According to the plaintiff, title suit No. 639 of 1964 was filed in the court of Munsif, Katihar, for a declaration that the survey entry with respect ,to the aforesaid two khatas, in the revision survey was erroneously shown to be in favour of the State of Bihar and that they had raiyati interest in those two khatas. In the aforesaid suit the State of Bihar appeared on 26th April. 1968, through an A. G. P. (defendant No. 3) and in which only petitions, were filed for time to file written statement. Ultimately, on 5th January, 1970, when again an application was filed for time, to file a written statement, the. court directed that the suit be fixed for 19th January, 1970 for- hearing ex-parte and rejected the prayer of the defendant for time. But it farther observed that if on that date the defendant would file written statement then it would be considered. On 19th January, 1970, again only prayer Was made on behalf of the defendant (the plaintiff in the present suit, 'under appeal)for time to file written statement which was rejected and the next date fixed was 28th January, 1970 On 28th January, 1970 also prayer for time to file written statement was made and no prayer was made revoke the order for ex-parte hearing. The Munsif, therefore, directed the suit to be put up for hearing on the next day i.e., on 29th January, 1970, On that date again a prayer was made for time to file written statement and no prayer was made to set aside the order for ex-parte hearing, which was again refused. Later on, the case was taken up for ex-parte hearing on 29th Januray, 1970, when no one appeared for the defendants in that suit, and the case proceeded ex-parte. On 30th January, 1970 the final order was passed in that suit on the basis of which a decree was passed.