JUDGMENT
R.B. Dixit, J.
1. Feeling aggrieved by the judgment and decree dated 11-10-96, passed in
Civil Appeal No. 20-A/89, of Addl. Judge to Distt. Judge, Morena at Sheopurkalan, partially modifying the judgment and decree in Civil Suit
No. 203-A/88, of IInd Civil Judge, Class II, Sheopurkalan, the appellants/plaintiffs have come up in appeal, seeking redress praying for reversal of the impugned judgment and decree.
2. The facts in brief shorn of details and necessary for the disposal of this appeal He in a narrow compass. Nabbo Bai had filed the suit for declaration and permanent injunction regarding agricultural land situated in village Bich-gawadi on the ground that she has 1/4th share in the disputed land alongwith defendant No. 3 who also possessed 1/4th share and deceased Narvada was having half share in the property. Narvada had sold half of her share in the disputed property to respondent Nos. 1 and 2, whereupon respondent Nos. 1 and 2 initiated partition proceedings before Tehsildar, Sheopurkalan and Tehsildar, Sheopurkalan, vide his order dated 29-12-69, proceeded to decide the application ex parte, while, in fact the plaintiff was not properly served.
3. Learned Trial Court dismissed the suit of the plaintiff vide judgment dated 1-3-89, against which, an appeal was filed before Addl. Distt. Judge, Sheopurkalan which also met the same fate by the impugned order.
4. The present appeal has been admitted on the following substantial questions of law:
(i) Whether, service of proceedings of partition by Revenue Court vide Ex. P-8, upon the plaintiff, was proper ?
(ii) If the service was not proper, whether, the order of partition by the Revenue Court is binding upon the plaintiff ?
5. Appellant/plaintiff Nabbo died during pendency of this appeal and the present appellants arc brought on record as her legal representatives. It has been submitted on behalf of appellants that both the Courts below erred in appreciating evidence regarding service of notice on the deceased plaintiff Nabbo. Notice is Ex. D-8, upon which, process server Allanur (D.W, 4) was examined. Apparently, report of process server of Ex. D-8, is that Nabbo Bai had refused to accept the service and therefore, the service was served upon her by throwing copy of summon on her body. The witness has admitted that he was not ordered to effect the service in such a way. He has further admitted that since Nabbo Bai had refused to accept the service, the question of taking her thumb impression in compliance of the order does not arise, while in fact, notice (Ex. D-8) bears thumb impression mark of Nabbo Bai. The learned counsel of appellant argued that the rules found in Schedule 1 of M.P. Land Revenue Code, specify the order of service on party, wherein, the only method as a first step is by effecting a personal service. In case, if Nabbo Bai had refused to accept service as reported by process server then the question of taking her thumb impression on the copy of notice does not arise. In my considered opinion, the process server has categorically admitted that he has not served upon Nabbo Bai any notice of Tehsildar. In the circumstances, evidence of another witness Heeralal (D.W. 6) who was alleged to be present at the lime
of service cannot he believed as being contradictory to the statement to process server Allanur. The findings of both the Courts below regarding service on Nabbo Bai cannot be sustained as being against the evidence on record.
6. In a Division Bench’s decision of this Court, in the case of Bhupendra Singh Vs. Gopalkunwar, reported in 1970 JLJ 256, it has been held that the assumption the jurisdiction of Civil Court, where the order of authorities is a nuliity, is not barred. In another decision of this Court in the case of Radhe Mohan Vs. Omnarayan Dubey, reported in 1991 Revenue Nirnay 87, it was pointed out that ex parte order of partition by Tehsildar can be challenged in civil suit for declaration of title.
7. In Sheikh Vahid Vs. Gokul Chand and others 1991 JLJ 688, it was observed that an order under Order 9 Rule 6 of CPC is a very serious order
and it has to be categorically recorded in the order that the summons were found to have been duly served. It is the duty of the Court to satisfy itself that the requirement contemplated under this provision have been duly fulfilled.
8. The Apex Court in the case of Ishwar Dass Jain Vs. Sohan Lal, reported in (2000) 1SCC 434, had observed that in second appeal, interference with findings of fact is permissible, when material or relevant evidence is not considered, which if considered, would have led to opposite conclusion. Similarly, in the case of Rohini Prasad Vs. Kasturchand, reported in 2000 (4) MPHT 5 = (2000) 3 SCC 668, it was pointed out that where misreading of evidence by Appellate Court would lead to miscarriage of justice or it’s finding is based on no evidence and thus, perverse, High Court would be justified in interfering in second appeal.
9. From the evidence discussed hereinabove, it is apparent that the service of proceedings of partition, by Revenue Court, vide Ex. D-8, upon the plaintiff/appellant was not proper and in the circumstances, the order of partition by Revenue Court is not binding upon the plaintiff. Both the Courts below therefore, erred in law in dismissing the suit of the plaintiff on the ground that she was properly served in partition proceedings.
10. Consequently, the appeal is allowed and the judgments and decrees of both the Courts below are set aside. The suit of the plaintiff, is hereby, decreed to the following effect:
“It is declared that the partition proceeding decided against the appellant/plaintiff is not binding upon them and therefore, the respondent Nos. 1 and 2 are restrained from interfering with the possession of the plaintiff, till, they are dispossessed by the order of Competent Court.”
In the facts and circumstances of the case, there shall be no order as to the costs.
11. Second Appeal allowed