- (1.) THIS is second appeal by the defendants in a suit for recovery of possession.
(2.) THE respondents Pemchand and others filed a suit for recovery of possession of a plot of land situated at village Dhujana, Tehsil Bali, and more fully described in the plaint, against the defendants, representatives of the Vaishnava community, impleading Berisal Singh, Chunilal, Mala, Babulal and Achlaram, on the allegations that the plaintiffs had obtained the plot of land by sale from Berisal Singh, Bhomia of the village and owner of the property in dispute, by document Ex. P. 2, dated Asadh Sudi 15th, Svt. 1985, and that thereafter, on Asadh Budi 13th Svt. 2002, they also obtained a Patta from Thikana Sanderao in whose Jagir the village was situated. It was alleged that the Vaishnava community of the village started building a temple in the neighbourhood, and encroached upon the plot of land on Asoj Sudi 2, Svt. 2002, which necessitated the filing of the suit. Of the defendants, Berisal Singh, Chunilal and Mala only filed a written statement. The defence was common to all the defendants, and it was alleged that the land belonged to one Anandram, and although Berisal Singh had executed a sale deed, the consideration of Rs. 35/- mentioned in the deed had not been received by the vendor, and one Daulatram, who claimed to be an heir of Anandram, also objected to the sale, and therefore the transaction fell through. It was alleged that thereafter, on Posh Budi 3, Svt. 1996, the heirs of Anandram dedicated the land to the temple of the Vaishnavas, and therefore the plaintiffs had no right to claim possession of the plot in dispute. The defendants denied the plaintiffs' possession from Svt. 1985 to Svt. 2002, as alleged by them. The trial court, after evidence, dismissed the suit. But on , appeal, the learned Additional District Judge No. 2 Jodhpur set aside the decree, and gave a decree for possession to the plaintiffs. The defendants have come in second appeal. The first point raised by learned counsel for the appellants was that Achla and Babulal, two of the defendants, had not been properly served in the lower court, and therefore the case should be remanded for a fresh hearing. In this case, the original court, which decided the case, was the court of Munsif Bali, and the appeal was filed in the court of Civil Judge Sojat. All the defendants were served, and they made appearance through a lawyer Mr. Jaikaran. Thereafter the case was transferred to the court of District Judge, Pali, and later to the court of the Additional District Court No. 2, Jodhpur. The summonses, which were issued by the District Judge, Jodhpur for service on Achla and Babulal, were affixed on their houses. In the case of Babulal, the process server's report is that he had gone to Ahmedabad and was not at his residence, and therefore the summons had been affixed. In the case of Achla, the process server's report is that Achla was reported to, have gone out to some village and was not present at his house, and therefore the summons had been affixed. It is quite true that this mode of service of summons was not a proper service, as the conditions laid down by 0. 5, R. 17 had not been properly complied with. Under O. 5, R. 12, the service is required to be made on the defendant in person, or on his authorised agent, if there is one. Rules 13 and 14 prescribe the mode of service on agents in certain cases, and rule 15 provides for service on any adult male member of the family in the absence of an agent. Rule 17 provides for cases in which the summons cannot be served in any of the modes prescribed by the foregoing rules, and in cases where the serving officer, after using all due and reasonable diligence, cannot find the defendant. In the case of Babulal, the information received by the process server was that he had gone to Ahmedabad. On that report, the appellants in lower court should have been asked to furnish proper address of the respondent in Ahmedabad. In the case of Achla, since the absence from the village appeared to be temporary, fresh attempt should have been made for the service. The service in the First Appellate Court on these two respondents was, therefore, not a valid service. The next question, that arises is whether the irregularity committed in the matter of service on these two persons requires the case to be sent back for a fresh hearing. These two persons did not appear in court, and the decision of the first appellate court against them was ex parte, and they could have under O. 41, R. 21 applied to the lower court for a fresh hearing. This procedure was not adopted by them, and they come in second appeal. It has been held in several cases that if the defendant does not apply for setting aside the ex parte decree, and files an appeal against the decision given against him, he cannot ask for a remand on the ground that the summons was not duly served, but his grounds of appeal would be limited to the questions of law or facts which are already on record. Ganesh Das Varma vs. Hari Chand (1) (A. I. R. 1934 Oudh, 131 (1) ). Raj Chandra Dhar vs. Messrs K. D. O. C. Ray (2) (A. I. R. 1924 Ran 137.) and M. Hummi vs. Aziz-ud-Din (3) (A. I. R. 1917 All 475. ). On the authority of these cases, Achla and Babulal appellants in this second appeal have no right to ask for a remand of the case for a fresh decision on the merits as they did not apply for setting aside the ex parte decision against them in the lower court. Another feature in this case is that these two appellants did not file any written statement in the trial court, and the case was fought out by Berisal Singh, Chunnilal, and Mala. All these three persons were respondents in the first appellate court and had contested the appeal. The case was therefore contested and decided on the merits, and under clause (c) of sub-sec. (1) of sec. 100 C. P. C. a second appeal could be based on a substantial error or defect in the procedure if it may have possibly produced error or defect in the decision of the case upon the merits. In this case, although the two respondents had not been properly served, and there was thus a defect in the procedure, this had no effect on the decision of the case on the merits as the other respondents had contested the case on the merits, and these two persons had remained absent even in the trial court. The preliminary contention has therefore no force. On the merits learned counsel for appellants argued that the document executed by Berisal Singh had not been acted upon, and the respondents never got possession of the property, and in the meanwhile the owners of the land had dedicated it to the temple. The owners are said to be Daulatram and others, the heirs and successors of Anandram. It is common ground between the parties that the plot of land had a house on it which was in occupation of Anandram. But this Anandram had, according to the evidence of both the parties, died long before Svt. 1985 when the document of sale was executed by Berisal Singh. According to the plaintiffs, the house had become dilapidated, and, on the death of Anandram, the proprietary right in the house passed to Berisalsingh. On behalf of the defendants, Berisal Singh also admits that Anandram died about 20 years prior to his execution of the sale deed in favour of the plaintiffs on Asadh Sudi 15th, Svt. 2985 that Anandram's possession was as a licensee from Berisal Singh or his ancestors, and that on the death of Anandram the house came to the possession of Berisal Singh. According to defendants' version also Daulatram did not come into possession of this house at any time after the death of Anandram. In fact the alleged dedication of this house on Posh Budi 3rd, Svt. 1996 is by the inhabitants of the village as appears from the contents of Ex. Dl, the deed of dedication. If the house had come to be possessed or owned by Daulatram, he alone could have made the dedication. Learned counsel for the appellants contended that the plaintiffs had obtained a Patta Ex. Plon Asadh Budi 13th, Svt. 2002 from the Thikana of Sanderao, and in making the application the plaintiffs alleged that the plot was a Khalsa one and should be put to auction so that the plaintiffs could purchase it. The argument is that if Berisal Singh had sold the land to the plaintiffs, they would not have approached the Thikana of Sanderao for auction of the land. The explanation is found in the statement of the plaintiff (Pemchand) that although he had obtained the land by a Patta from Berisal Singh, he had been advised to get a document of title from the superior landlord - the Thikana of Sanderao - as well, and it seems that if the Thikana considered that the proprietary right in land or house which had been left or abandoned by the owner, vested in the Thikana of Sanderao, it could only be considered to be Khalsa land unoccupied by any person, although somebody may have got into possession whether on his own account or under a title from an un-authorised person. Pukhraj P. W. 2, who had something to do with the grant of Patta by the Thikana, states that he had visited the village, and had seen the site at the time of the sale and it was in occupation of the plaintiffs. I agree with the lower court that the possession of the plaintiffs over the property in dispute from the date of the sale by Berisal Singh has been sufficiently proved. There is no force in the contention that the sale made by Berisal Singh in Svt. 1985 had not been acted upon. As regards the dedication, lit is apparent from the very perusal of the deed that the dedication, as mentioned above, was made by the inhabitants of the village, and it has not been shorn how these inhabitants were authorised to make the dedication. If the title to the property did not pass by the sale deed executed by Berisal Singh, the title to the property remained with Berisal Singh, and he alone could transfer the title to that property. He is oney one of the signatories to Ex. D 1 in his capacity as an inhabitant of the village, which further shows that he had no proprietary title in the property at that time otherwise he would not have been included in co-villagers in making the dedication. 9. The lower appellate court has come to a right conclusion, and this appeal fails and is dismissed with costs. . ;