IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.265 of 2004 SRI DHANESHWAR PRASAD GUPTA Versus SMT.MAYAWATI DEVI & ORS ----------- 5/ 15-07-2008 Heard learned counsel for the appellant. This second appeal arises out of Title Suit No. 26 of 2001 which was filed by plaintiffs / respondents for declaration that Most. Tara Devi had no right to execute registered deed of gift dated 17.11.1988 in favour of defendant and as such the registered deed of gift is forged , fabricated and fit to be set aside and also for declaration that plaintiffs had perfect right, title and possession over the suit land detailed in schedule-1 of the plaint and for permanent injunction restraining the defendants/ respondents from alienating the suit land. Although summons and notices were duly served upon the defendant/ appellant but he did not appear in the suit nor filed any pleading nor led any evidence and hence the suit was decreed ex-parte on 25.09.2002 which was challenged by the defendant/ appellant in Title Appeal No. 22 of 2002 which was dismissed by the learned District Judge, Madhepura vide judgment and decree dated 26.7.2004. The said judgments and decree of the learned courts below have been challenged in the instant second appeal by defendant/ appellant. Against the aforesaid ex-parte judgment and decree of the trial court the defendant/ appellant did not file any miscellaneous case under the provisions of Order IX Rule 13 of the Code of Civil Procedure and hence the learned lower appellate court held that the appellant was debarred from raising any question that summons were - 2 - not duly served and he was prevented by any sufficient cause from appearing in the suit. Furthermore, apart from the memorandum of appeal, the defendant/ appellant neither submitted any pleading of his own nor filed any application under the provision of Order XLI Rule 27 of the Code of Civil Procedure for adducing any evidence, oral or documentary, and hence there was no material at all before the learned court of appeal below to set-aside the judgment and decree of the learned trial Court. The learned court of appeal below also rightly held that the suit was not barred by the law of limitation. Considering the aforesaid facts and circumstances, this Court does not find any substantial question of law involved in the instant second appeal which is accordingly dismissed. B.Tiwary/ ( S. N. Hussain, J )