IN THE HIGH COURT OF JUDICATURE AT PATNA SA No.359 of 2001 Makhtar Sah @ Mokhtar Sah, Son of Dwarika Sah of village – Parsa Grah, P.S. – Ekma, District – ….. Defendant – Appellant - Appellant. Versus 1. Ramesh Gupta, Son of late Ram Ekbal Sah 2. Surendra Gupta, Son of late Ram Ekbal Sah 3. Bimla Devi, daughter of late Ram Ekbal Sah, wife of Ragho Prasad All resident of village – Parsa Grah, P.S. – Ekma, District – Saran. Plaintiffs – Respondents - Respondents. For the Appellant : - Sri Shashishekhar Duvedi, Sr. Advocate Sri Shambhu Sharan Singh, Advocate Sri R.S. Duvedi, Advocate Sri U.K. Singh, Advocate Sri P. Dhananjay, Advocate For the Respondents : - Sri Ram Adya Singh, Advocate Sri Arjun Prasad No. I, Advocate ----------- 07/ 23.04.2009 Heard learned counsel for the appellant and the learned counsel for the respondents. 2. This second appeal has been filed by the sole defendant- appellant-appellant challenging the judgments and decree of both the learned courts below. 3. The matter arises out of Title Suit No. 85 of 1980 which was filed by the plaintiffs-respondents-respondents for setting aside ex-parte decree dated 30.8.1979 passed in Title Suit No. 108 of 1978 and also for setting aside the sale deed dated 6.6.1980 executed by the court in Execution Case No. 31 of 1979. 4. The said suit was decreed on contest by the learned Subordinate Judge I, Saran at Chapra vide his judgment and decree dated 14.3.1984. Against the aforesaid judgment and decree of the trial court the defendant-appellant filed Title Appeal No. 46 of 1984 which was dismissed on contest by the learned VIIth Additional - 2 - District Judge, Saran at Chapra vide his judgment and decree dated 10.10.2001. 5. From the arguments of the parties as well as from the materials on record, it transpires that the appellant of the instant second appeal had filed Title Suit No. 108 of 1978 against the predecessor of the respondents of the instant second appeal, namely, Ram Ekbal Sah for specific performance of agreement for sale. The said suit was decreed ex-parte by the learned trial court vide judgment and decree dated 30.8.1978, for execution of which Execution Case No. 31 of 1979 was initiated in which a sale deed dated 6.6.1980 was executed by the court in favour of the plaintiff of Title Suit No. 108 of 1978, with respect to the suit property. 6. The sole defendant of Title Suit No. 108 of 1978 thereafter filed Title Suit No. 85 of 1980 for setting aside the aforesaid judgment and decree of Title Suit No. 108 of 1978 as well as sale deed executed by the court in Execution Case No. 31 of 1979. The main issue in the Title Suit No. 85 of 1980 was as to whether notices were validly served on Ram Ekbal Sah, the defendant of Title Suit No. 108 of 1978. 7. Both the learned courts below after very carefully considering the pleadings and evidence of the parties came to the conclusion that Mokhtar Sah (plaintiff of Title Suit No. 108 of 1978), the defendant of Title Suit No. 85 of 1980 was unable to prove the service of summon and process upon Ram Ekbal Sah either in Title Suit No. 108 of 1978 or in Execution Case No. 31 of 1979 beyond all - 3 - reasonable doubts, rather he fraudulently suppressed the summon and process and thereby committed fraud on the court by claiming that the summon and notice had been served properly in the said suit and execution case. 8. The learned courts below specifically found that even the registered card which was said to have been served upon the defendant of Title Suit No. 108 of 1978 was not brought on record nor there was anything to show that prior to the passing of the ex-parte decree in Title Suit No. 108 of 1978 notices were published for substituted service. Hence, it was held that the plaintiff of Title Suit No. 108 of 1978 had fraudulently suppressed the summon and process of the said suit for snatching an ex-parte order and also for obtaining the sale deed of the disputed land in execution case. These findings of the learned court of appeal below are concurrent findings of fact and hence, there is no occasion for this Court to interfere in the said judgments and decree passed by the learned courts below. 9. In the said circumstances, this Court does not find any illegality in the impugned judgments and decree of the learned courts below nor does it find any substantial question of law involved in this second appeal, which is accordingly, dismissed at this stage of hearing under Order XLI Rule 11 of the Code of Civil Procedure. DKS/ (S.N. Hussain, J.)