IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.601 of 2007 Awadhesh Thakur, son of Late Raghu Nandan Thakur, resident of village Patahi Roop, P.S.Sadar, District Muzaffarpur. ……….Defendant-Applicant-Petitioner. Versus 1. Raj Kumar Thakur son of Binda Thakur, 2. Binda Thakur, son of Shiv Govind Thakur, both resident of village Patahi Roop, P.S. Sadar, District Muzaffarpur. 3. Nand Kishore Thakur, son of Late Deo Nandan Thakur, resident of village Patahi Bishwanath, P.S. Sadar District Muzaffarpur. 4. Baleshwar Rai, son of Late Basudeo Rai, resident of village Patahi Hari, P.S. Sadar, District Muzaffarpur. 5. Prabhu Nath Singh, son of Rajendra Singh , resident of village Imadpur, P.O. Basantpur, P.S. Basantpur, District Siwan, at present working as a Peon of Civil Court, Muzaffarpur. ……Plaintiffs-Opposite parties-Opposite parties. For the petitioner : M/s Vijay Kumar Singh and Pankaj Kumar Singh, Advocates. For the opposite parties : None. ----------- 04/ 12.10.2009 Heard learned counsel for the petitioner. 2. This civil revision has been filed by defendant- applicant-petitioner challenging order dated 13.01.2007 by which the learned Subordinate Judge-II, Muzaffarpur, rejected his application bearing Miscellaneous Case No.34 of 1985, which was filed by him for enquiry regarding service of summons. 3. It transpires that Partition Suit No.127 of 1985 was filed by the plaintiffs-opposite parties-opposite parties for partition of their share in the suit property and for other ancillary reliefs. 2 Thereafter notices were sent to the defendants which were reported to have been duly served upon them by the process server. 4. However, the claim of the petitioner was that plaintiff no.2 of the suit property brought the process server Prabhunath Singh in his collusion and got a fake service report in which one Baleshwar Rai put his signature as a witness of service of summons and in those circumstances the defendant-petitioner filed Miscellaneous Case No.34 of 1985 for holding an enquiry in the said matter. 5. In the said enquiry the defendant-petitioner adduced himself as A.W.1 and also produced an affidavit sworn by one Baleshwar Rai dated 15.10.1985 (Ext.1) as well as the signature of Nand Kishore Thakaur on service report of summons and other persons, who were witnesses on service report of summons (Ext.2 to 2/C) and also service report of summons and the signatures marked as Ext.3 series. 6. On the other hand, the plaintiffs-opposite parties produced seven witnesses out of whom O.P.Ws.6 and 7 were formal witnesses, whereas O.P.Ws. 1, 2, 3 4 and 5 fully supported the claim of the plaintiffs and disproved the claim raised by the defendant-petitioner. Apart from the said oral evidences the plaintiffs also produced the signatures of the process server as well as the witnesses (Ext.A series), and affidavit sworn by Baleshwar Rai (Ext.B), and also service report of Prabhu Nath Singh on summons of Binda Thakur and others (Ext.C series) as well as endorsement of record keeper of Judicial Record Room, on carbon 3 copy of petition dated 11.06.1992 (Ext.D), carbon copy of petition for calling for the document from Judicial Record Room, Muzaffarpur (Ext.E) as well as requisition dated 03.06.1992 for copy of informatory petition (Ext.F). 7. Considering the pleadings of the parties as well as the materials on record, the learned court below came to the specific conclusion that no step was taken by the defendant- petitioner to prove Ext.1, which was said to be an affidavit sworn by Baleshwar Rai himself and which was challenged by the plaintiffs-opposite parties on the basis of another affidavit sworn by Baleshwar Rai filed by the plaintiffs as Ext.B. The other evidence of the petitioner also could not prove his claim, whereas the evidence of the opposite parties completely dismantled petitioner’s claim. In the said circumstances, the learned court below rightly came to the conclusion that there was no occasion for allowing the claim of the defendant-petitioner, specially in view of the fact that the partition suit in question had not yet come up before the court for deposition on behalf of the defendant- petitioner. 8. In the aforesaid facts and circumstances this court does not find any illegality in the impugned order of the learned court below, nor does it find any jurisdictional error therein. Accordingly, this civil revision is dismissed. harish/ ( S. N. Hussain, J. )