Mohammad Akhtar vs Mohammad Guddu @ Noor Aalam
2023 Latest Caselaw 138 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                          SECOND APPEAL No.329 of 2019
     ======================================================

Mohammad Akhtar, Son of Mohammad Ilyas, Resident of Piro Darzi Tola, Purani Kachari, P.S. and Anchal, Piro and District- Bhojpur.

... ... Appellant/s Versus

1. Mohammad Guddu @ Noor Aalam, Son of Late Mohammad Ilyas, Resident of Piro Darzi Tola, Purani Kachari, P.S. and Anchal- Piro and District- Bhojpur

2. Mohammad Maqsood, Son of Late Mohammad Ilyas, Resident of Piro Darzi Tola, Purani Kachari, P.S. and Anchal- Piro and District- Bhojpur

3. Mohammad Pervej, Son of Late Mohammad Ilyas, Resident of Piro Darzi Tola, Purani Kachari, P.S. and Anchal- Piro and District- Bhojpur

4. Mohammad Saroj, Son of Mohammad Maqsood, Resident of Piro Darzi Tola, Purani Kachari, P.S. and Anchal- Piro and District- Bhojpur

... ... Respondent/s ====================================================== Appearance :

     For the Appellant/s    :     Mr. Mohammed Abu Haidar, Advocate
     For the Respondent/s   :     Mr.

====================================================== CORAM: HONOURABLE MR. JUSTICE SUNIL DUTTA MISHRA CAV JUDGMENT Date : 10-01-2023

This Second Appeal has been filed by the appellant

against the order dated 27.04.2019 and decree dated 04.05.2019

passed by the learned Additional District Judge - 13, Bhojpur at

Ara in Title Appeal No. 15 of 2017 whereby and wherein the

appeal was dismissed affirming the order dated 25.11.2013 and

decree dated 09.12.2013 passed by learned Munsif 1st, Civil

Court, Bhojpur at Ara in Title Suit No. 31 of 2012.

The appellant was defendant in the suit. The brief fact

of the case is that the plaintiff had instituted the suit claiming

title and recovery of possession over the suit property on the Patna High Court SA No.329 of 2019 dt.10-01-2023

basis of self-acquired property which he purchased from

Rajendra Bhoop Bahadur on 23.03.2010 through registered sale

deed giving consideration money of Rs. 18,000/- and came in

possession over suit property after the purchase of the same.

Defendants no. 1 to 3 are brothers of the plaintiff and defendant

No. 4 is his nephew. The claim of the petitioner is that on

25.02.2012 defendants entered in the shop of the plaintiff and on

protest by the plaintiff they locked the shop. Hence the plaintiff

filed the suit.

For the appearance of defendants in the suit, summons

ordinary as well as registered post were issued which was duly

received by the defendants but they failed to appear and the case

was fixed for ex-parte hearing against the defendants. On the

basis of oral and documentary evidence adduced by the plaintiff,

the ex-parte order has been passed against which the petitioner

filed the Title Appeal. The learned Additional District Judge- 13,

Bhojpur at Ara vide order dated 27.04.2019 found no merit in

the appeal and dismissed the same against which the Second

Appeal has been filed on behalf of the appellant.

Heard learned counsel for the appellant on admission.

Learned counsel for the appellant has submitted that the

trial court and the appellate court have failed to appreciate that Patna High Court SA No.329 of 2019 dt.10-01-2023

appellant had no knowledge about the institution of suit and the

execution proceeding was initiated then he got the knowledge of

the same and he filed Miscellaneous Case No. 1 of 2014 under

Order 9 Rule 13 and Section 151 of the Code of Civil Procedure

for setting aside the ex-parte decree on the ground that the

appellant had not put his signature on the acknowledgment and

the said signature is a forged signature. However, the said

Miscellaneous Case has been dismissed for default for want of

pairvy on behalf of the appellant and the Miscellaneous Case

was not decided on merit. He has further submitted that

summons of suit has not been duly served on the appellant and

he was not given proper opportunity to defend his case. He has

also submitted that the learned trial Court has not considered to

order for gazette publication for the appearance of the

defendants and accordingly, the service against the defendants

ought not to be treated as duly served. He also submits that the

learned Court below on merit also failed to consider the fact as

whether Rajendra Bhoop Bahadur was the owner of the land in

question or not? Further it is submitted that ownership of

plaintiff is not proved and accordingly judgment and decree of

courts below is bad in law as well as on the facts.

From perusal of the order passed by the trial Court as Patna High Court SA No.329 of 2019 dt.10-01-2023

well as the appellate Court it appears that the trial Court in its

order specifically stated that for the appearance of defendants in

the suit all legal procedures were adopted but they did not

appear in the suit and the suit was fixed for ex-parte hearing

against the defendants. The appellate Court on perusal of the

trial Court record also observed that summons, ordinary as well

as through registered post, were issued to the defendants and by

the order dated 08.02.2013 services against the defendants were

confirmed and the case was fixed ex-parte against the

defendants.

Both the Courts below on merits also given finding that

plaintiff has proved his pleadings with oral and documentary

evidence that on the basis of the registered sale deed no. 1676

dated 23.03.2010 it is concluded that the plaintiff / respondent is

the owner of the suit land who has purchased the same giving

consideration money of Rs. 18,000/- and came in possession

over the suit property after the date of purchase of suit land and

he is entitled to recover the possession of the suit land.

It was rightly observed by the appellate Court, considering

the fact that even after the service of notice the appellant did not

appear in the trial Court, that the burden of proving the fact that

the signature of the appellant on the concerned acknowledgment Patna High Court SA No.329 of 2019 dt.10-01-2023

was not his signature, was upon the appellant but the appellant

did not discharge the said burden of proof.

The law is well settled that this Court cannot entertain a

second appeal under Section 100 of the Civil Procedure Code

unless a substantial question of law is involved. In this case,

there is concurrent finding of facts and there is no perversity in

the findings of the courts below.

As discussed above, there is no substantial question of

law arises in this Second Appeal. Accordingly, this Second

Appeal is dismissed at the stage of admission itself.

(Sunil Dutta Mishra, J) kamlesh/-

AFR/NAFR             NAFR
CAV DATE             26.09.2022
Uploading Date       10.01.2023
Transmission Date