P.N.Goel, J. - (1.) This is a defendants appeal against the judgment and decree dated 6-8-1966 passed by the Civil Judge, Agra in Civil Appeal No. 526 of 1965.
(2.) Facts giving rise to this appeal are these: The dispute relates to a Kothari ABCD shown in the plaint map 5/5 Ka which is a part of the trial courts decree in suit No. 373 of 1962. The plaintiff-respondents claimed permanent injunction restraining the defendant from taking possession of the Kothari by any means. The respondents alleged that this Kothari was part of the house No. 4899/1-3 which fell to the lot of their vendor Bindeshwari Prasad and that they were in actual peaceful possession thereof since the date of the sale i. e. 20-2-1959 in their favour, that Rameshwari Prasad alias Rajjan Lal defendant No. 1 had agreed to sell house No. 4899 which had fallen to his lot in the partition in the year 1956, that later on he did not want to execute sale deed in respondents favour, that he had allowed Rajjan Lal defendant No. 2 appellant to live in house No. 4899, that the appellant used to cause harm to the respondents now and then, that the appellant tried to demolish a portion of the wall of the respondents house to forcibly open a door towards the Kothari in dispute, that the local police directed the appellant not to open any door and to fill up the demolished portion of the wall, that the local police also directed tire respondents to fill up the door between the portion B. N.
(3.) The suit was contested by defendant No. 2 appellant. Issues were struck in the case on 21-8-1963. The suit was fixed for final hearing on 2-4-1965. On 1-4-1965 the appellant moved for adjournment which was allowed. Then again on 18-5-65 the appellant moved application for adjournment which was allowed. Then on 22-7-65 the appellant again moved an application for adjournment which was allowed. Thereafter on 7-9-1965 the hearing of the case was adjourned to 13-10-1965 on the application of the appellant. On 13-10-1965 the appellant was absent. His counsel did not appear. The trial court proceeded under O. 17, R. 3 C. P. C. On behalf of the respondents one witness Ram Charan Das only was examined. Then 16-10-1965 was fixed for judgment. On 16-10-1965 the judgment was delivered decreeing the respondents stiff. Against this decree the appellant filed appeal which was heard by the Civil Judge. On behalf of the appellant it was urged that the trial court was in error in proceeding to decide the suit on merits under O. 17, R. 3 C. P. C. and that the trial court should have proceeded ex parte under O. 17, R. 2 C. P. C. It appears that this contention did not find favour with the Civil Judge. Therefore, the appellants counsel assailed the decree on merits. The Civil Judge, therefore, dealt with the merits of the case and came to the conclusion that the trial Court had rightly held that the Kothari in dispute belonged to the respondents. Consequently, he dismissed the appeal.;