1 2025:CGHC:25395 NAFR HIGH COURT OF CHHATTISGARH AT BILASPUR FA No. 406 of 2018 1. Leela Bai W/o Mohitram Patel Aged About 61 Years R/o Aamanara (Udangi), Police Station Sepat, Tahsil- Masturi, Civil And Revenue District- Biaspur, Chhattisgah........(Plaintiff), District : Bilaspur, Chhattisgarh ... Appellant(s) versus 1. Khursal @ Khushal Patel S/o Late Nanki Patel Aged About 56 Years R/o Village- Kukda, Police Station- Seepat, Tahsil- Masturi, Civil And Revenue District- Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh 2. Teejmati Bai W/o Late Chhotu Patel Aged About 66 Years R/o Village- Reki (Hardibazar), Police Station And Tahsil- Hardibazar, Civil And Revenue District- Korba, Chhattisgarh., District : Korba, Chhattisgarh 3. Leelmati W/o Late Sunder Lal Patel R/o Village- Rail Dabri (Hardibazar), Police Station And Tahsil- Hardibazar, Civil And Revenue District- Korba, Chhattisgarh., District : Korba, Chhattisgarh 4. Pardeshi S/o Late Ganpat Patel Aged About 51 Years R/o Nawapara (Ganiyari), Police Station And Tahsil- Takhatpur, Civil And Revenue District- Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh 5. Krishna Late Ganpat Patel Aged About 59 Years R/o Nawapara (Ganiyari), Police Station And Tahsil- Takhatpur, Civil And Revenue District- Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh 6. Sahas S/o Late Ganpat Patel Aged About 47 Years R/o Nawapara (Ganiyari), Police Station And Tahsil- Takhatpur, Civil And Revenue District- Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh MANISH YADAV Digitally signed by MANISH YADAV Date: 2025.07.16 12:08:36 +0530 2 7. Rahas Bai D/o Late Ganpat Patel Aged About 45 Years R/o Nawapara (Ganiyari), Police Station And Tahsil- Takhatpur, Civil And Revenue District- Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh 8. Paltu S/o Jagatram Patel R/o Village- Kukda, Police Station- Seepat, Tahsil- Masturi, Civil And Revenue Distirct- Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh 9. Mohan Lal Patel S/o Sukdev Patel R/o Village- Kukda, Post Office Mahuda, Police Station- Seepat, Tahsil- Masturi, Civil And Revenue District- Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh 10. Hemant Kumar Raj S/o Shobharam Raj Aged About 34 Years R/o Udangi (Basti), Post Office- Nirtu, Police Station- Seepat, Tahsil- Masturi, Civil And Revenue District- Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh 11. Neelam Kumar Raj S/o Shobharam Raj Aged About 31 Years R/o Udangi (Basti), Post Office- Nirtu Police Station- Seepat, Tahsil- Masturi, Civil And Revenue District- Bilaspur, Chhattisgarh., District : Bilaspur, Chhattisgarh 12. Phool Singh Patel S/o Late Bodhanram Patel R/o Kukda, Post Office- Mahuda, Police Station- Seepat, Tahsil- Masturi, Civil And Revenue District- Bilaspur, Chhattisgarh., At Present R/o Shanti Mohalla, Near Durpa Primary School Korba, Police Station, Tahsil And Civil And Revenue District- Korba, Chhattisgarh., District : Korba, Chhattisgarh 13. State Of Chhattisgarh Through- Collector, Bilaspur, Police Station- Civil Lines, Tahsil, Civil And Revenue District- Bilaspur, Chhattisgarh.......(Defendants), District : Bilaspur, Chhattisgarh ... Respondent(s) For Appellant(s) : Mr. Ratnesh Kumar Agrawal, Advocate along with Mr. Sourabh Agrawal, Advocate For Respondent 8 to 12 : Mr. Alok Kumar Dewangan, Advocate For State : Ms. Soumya Sharma, Panel Lawyer Hon'ble Shri Justice Narendra Kumar Vyas Order on Board 18.06.2025 1. The appellant/plaintiff has filed the present first appeal under Order 41 Rule 1 read with Section 96 of Code of Civil Procedure, 1908 3 against the judgment and decree dated 27.06.2018 passed by the learned 7th Additional District Judge Bilaspur, District - Bilaspur (C.G.) in Civil Suit No. 170-A/2016 by which the learned trial Court has dismissed the suit filed by the plaintiff for partition and declaration of title. 2. Brief facts as reflected from the record are that: a. The plaintiff and respondents No. 1 to 3 are son and daughter of late Nanki Patel and the defendants No. 4 to 7 are son and daughter of Bahura Bai Patel who is deceased daughter of late Nanki Patel. The genealogy of family tree has also been described in the plaint. The land bearing Patwari Halka No. 33/11, Rajasv Nirikshak Mandal - Seepat, Tehsil Masturi, District Bilaspur and one house constructed in Abadi land (hereinafter referred as “suit property”) which is owned and possessed by late Nanki Patel s/o Malechchh and suit property which is recorded in the name of Khursal s/o Nanki which has been described in Schedule “A” of the plaint. The suit property which is situated in Abadi land and semi finished house which has been described in Schedule “B” be referred to as suit property. It is also the case of the plaintiff that the suit property of late Nanki Patel has not been partitioned and with the consent of plaintiff, defendant No. 1 earning his livelihood and he used to give 1/5th share. It is also the case of the plaintiff that for the last 2 years defendant No. 1 is not giving his share and when the plaintiff demanded his share, the same has been denied by him on the pretext that he has 4 no share. b. On 07.07.2015, when the plaintiff obtained the revenue records then it has been brought to the notice that in the suit property name of defendant No. 8 has been recorded in the revenue records. When the plaintiff inquired about this fact, it was revealed that the defendant No. 1 has sold the property to defendant No. 8 and similarly, other property bearing Khasra No. 732/2, Khasra No. 522/2 and 522/4 has been sold to respondents No. 9, 10, 11 and 12. It is also the case of the plaintiff that on the forged document the sale deed has been recorded, therefore, she has filed a suit for partition of the suit property claiming partition and possession of the suit property to the extent of 1/5th share. c. The record of the case would demonstrate that the defendant No. 1, 2 and 4 to 7 have refused to accept the notice and the defendant No. 3 has served with the notice, but they have chosen not to appear, therefore, the trial Court has proceeded ex-parte against the defendants No. 1, 2, 3 and 4 to 7. Representations were made on behalf of defendants No. 8 and 10, 10 to 12 and afresh notice was ordered against defendant No. 13. On 02.03.2017, the defendant No. 13 has chosen not to appear, therefore, the trial Court proceeded ex- parte against the defendant No. 13 and fixed the matter on 24.04.2017. On 24.04.2017, defendants No. 8 to 12 sought time to file written statement and thereafter, the matter was adjourned on various occasions and the plaintiff examined 5 himself on 21.11.2017. Thereafter, the defendant No. 8 to 12 examined their witness on 21.01.2018 and again adjournment was sought for recording evidence, but they have chosen not to lead further evidence, but on 10.05.2018, the defendant No. 8 to 12 remained absent, therefore, the trial Court proceeded ex-parte and the matter was fixed for argument and heard on 23.06.2018 and thereafter, judgment and decree was passed on 27.06.2018. The learned trial Court was pleased to dismiss the suit by recording its finding that the defendant No. 1 to 3 and 4 to 7 have chosen not to appear before the trial Court, as such, the defendants No. 8 to 12 cannot be held to be bonafide purchaser and it is collision suit between the plaintiff and defendants No. 8 to 12 and it has dismissed the suit in view of proviso ff Section 34 of the Specific Relief Act, 1963. 3. Learned counsel for the appellant would submit that the trial Court has committed illegality in dismissing the suit in view of the well settled position of law that daughter being coparcener in the property is entitled to get share and also by the Hon’ble Supreme Court in case of Vineeta Sharma vs. Rakesh Sharma & Others reported in 2020 (9) SCC 1. He would further submit that the trial Court without any material on record, evidence has recorded its finding that it is collusive suit. Thus, he would pray for setting aside the judgment and decree dated 27.06.2018. 4. Per contra learned counsel for the respondent Nos. 8 to 12 would 6 submit that the learned trial Court has rightly dismissed the suit as the plaintiff is well aware about the fact that the property has been sold by executing the sale deed in favour of defendants No. 8 to 12, still the defendant No. 1 to 7 have chosen not to appear before the trial Court which clearly demonstrates that it is collusive suit between plaintiff and defendants No. 1 to 7 and would pray for dismissal of the appeal. 5. I have heard learned counsel for the parties and perused the record with utmost satisfaction. 6. From the records, it clearly demonstrates that the trial Court has proceeded ex-parte against the defendants No. 1, 2, 3, 4 to 7 on the count that they have received the summons and despite receiving it they have chosen not to appear before the trial Court. Accordingly, it has proceeded ex-parte against them. The record of the case further demonstrates that the trial Court has not followed the mandatory provisions of Order 5 Rule 19 CPC by examining the Serving Officer who is alleged to have been served upon the defendants No. 1 to 7 which is non-compliance of Order 5 Rule 19 CPC. 7. Whether the provisions of Order 5 Rule 19 CPC is a mandatory in nature or not, to ascertain this issue it is expedient for this Court to go through with the provisions of Order 5 Rule 17, 18 and 19 CPC which reads as under: “17. Procedure when defendant refuses to accept service, or cannot be found. Where the defendant or his agent or such other person as 7 aforesaid refuses to sign the acknowledgment, or where the serving officer, after using all due and reasonable diligence, cannot find the defendant, who is absent from his residence at the time when service is sought to be effected on him at his residence and there is no likelihood of his being found at the residence within a reasonable time and there is no agent empowered to accept service of the summons on his behalf, nor any other person on whom service can be made, the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries on business or personally works for gain, and shall then return the original to the Court from which it was issued, with a report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did do, and the name and address of the person (if any) by whom the house was identified and in whose presence the copy was affixed. 18. Endorsement of time and manner of service. The serving officer shall, in all cases in which the summons has been served under rule 16, endorse or annex, or cause to be endorsed or annexed, on or to the original summons, a return stating the time when and the manner in which the summons was served, and the name and address of the person (if any) identifying the person served and witnessing the delivery or tender of the summons. 19. Examination of serving officer. Where a summons is returned under rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit; and shall either declare that the summons has been duly served or order such service as it thinks fit.” 8. From the perusal of the above provision, it is crystal clear that in case the defendant refused the summon issued by the Court then it is necessary to examine the Serving Officer to find out whether the defendants have really chosen not to appear or there is manipulation in the service. The examination of serving officer is 8 inconfimity with the natural justice and fair play. The provision of Order 5 Rule 19 CPC has come up for consideration before the various High Courts and the Hon’ble High Court has held as under: “9. In a decision reported in 2007 (1) CGLJ 314 (Ashok Kumar Sahu Vs. Madhusudan) in the similar situation where the provisions of Order 5 Rule 17 of the CPC were not complied with while submitting report by the process server, this Court has set aside the ex parte decree and held in para 7 as under : “7. Having considered the rival submissions, I have perused the record of Civil Suit No. 44-B/2003 and also the record of Misc. Judicial Case No. 17/2004, the testimony of the Process Server Kewal Das and the summons of the defendant issued for 15.11.2004 and the report of service by affixture written by Process Server Kewal Das. The report of Process Server on the summons does not give any detail as to the person who identified the house of the defendant and his wife Kuleshwari and also does not reveal the name of the lady who refused service of notice. The report of Process Server also shows that it has been signed by a witness namely Surendra, who was not examined by the plaintiff/respondent. Process Server Kewal Das, in his testimony in paragraph 3, stated that the name of the person who was present at the time of service by affixture was perhaps Deepak Kumar. Paragraph 4 of the testimony of the Process Server also shows that once neighbouring lady had identified the wife of the defendant. However, the name of that lady was not mentioned by the process server in his report as mandated by Order V Rule 18 C.P.C. In paragraph 5, the process server also deposed that he came with the plaintiff-decree-holder to the Court and had snacks with him in the hotel. He also admitted that he did not make any payment for the snacks.” 10. In a decision reported in 1987 MPLJ 746 (Kunja Vs. Lalaram and others) where the summons was held to be not duly served and no juridical order was passed, High Court of M.P. following that the Rule 17 or Order 5 of CPC is mandatory, has held in para – 5 as under : “5. I have no hesitation to take the view that the provisions of Rule 19 aforequoted are mandatory in real sense of the term and that it casts a duty on the Court to make a judicial order while accepting service effected in the manner prescribed under Rule 17 of Order 5, Civil Procedure Code. I say so because the 9 legislature requires the Court that it “shall either declare that the summons has been duly served or order such service as it thinks fit.” Because also, the legislature vests jurisdiction in the Court to examine the serving officer even when his report is supported by an affidavit. That the discretion has been duly and judicially exercised even to refuse to examine the serving officer in such a case must be manifested in the order passed under Rule 19 of Order 5 Civil Procedure Code, accepting service thereunder. Any other view, I have no hesitation to say at once, will cause serious injustice to moneyless and numberless litigants in this poor country where justice has to be purchased at a very high price. I must heed the mandate of Art. 39-A of the Constitution to so declare emphatically in unambiguous terms despite my attention being drawn to a decision of a single Judge in Chandansingh, 1969 MPLJ (Note) 21. With due respect, I humbly beg to differ as the view taken by his Lordship does not accord with the constitutional mandate. I find it difficult to accept the proposition that the report (endorsement or the affidavit) of the process server is sacrosanct. If that had been the position, the legislature would not have invested the Court to exercise discretion in the matter of examining the process server by which a valuable right has been created in the aggrieved person to contest validity of service; because his vital right to be heard in the case could be impaired immeasurably with this object it has made the provision. In any case, his Lordship was not called upon to expound on the ambit and scope of Rule 19, directly in issue in this case, though he spoke of Rule 18. The decision, therefore, is distinguishable on facts.” 11. In a decision reported in 2001 (2) MPLJ 142 ( Baijnath Mishrilal Kachhi Vs. Harishanker s/o Mishrilal and others) High Court of M.P. while dealing with the identical issue held that in the case of refusal of service of summons, when the same has been affixed in presence of witnesses and report has been endorsed, it has also to be reported as to who identified the house of the defendant and the name of the person who identified the name of the defendant has to be mentioned, in para 15 has held as under : “15. It is therefore, clear that in case of refusal of service of summons, the same has to be affixed in the presence of the witnesses and a report has to be endorsed by the process server in that regard. It has also to be reported by the process server, as to who identified the house of the defendant and he should also mention the names of persons in whose presence 10 the copy of summons was affixed, on the refusal to receive the summons by the defendant.” 12. The Order 5 Rule 19 provides for examination of serving officer, where a summons is returned under Rule 17, the Court shall, if the return under that rule has not been verified by the affidavit of the serving officer, and may, if it has been so verified, examine the serving officer on oath, or cause him to be so examined by another Court, touching his proceedings, and may make such further enquiry in the matter as it thinks fit, and shall either declare that the summons has been duly served or order such service as it thinks fit.” 9. From the above stated facts and considering the provisions of Order 5 Rule 19 CPC, it is quite vivid that the trial Court without considering the provisions of law has proceeded ex-parte and thereafter, has dismissed the suit, as such, the ex-parte proceedings initiated against the defendants No. 1 to 7 is illegal and liable to be set aside. Thus, the finding recorded by the learned trial Court that since the defendants No. 1 to 7 have chosen not to appear before the trial Court, as such, it is collusive suit which suffers from perversity or illegality. From the record also it is quite clear that apart from the ex-parte proceedings against the defendants No. 1 to 7 no other materials have been considered by the trial Court to record such finding of collusive suit, therefore, this finding of collusive suit is also liable to be set aside for this reason also. Consequently, the judgment and decree dated 27.06.2018 is set aside and the matter is remitted back to the trial Court for afresh adjudication in accordance with law. The plaintiff and defendants No. 8 to 12 are at liberty to amend the pleadings if the exigency so arises. Sso far as defendants No. 1 to 7 are concerned, they are at liberty to file written statements, if they so 11 advised, on their appearance before the trial Court. The plaintiff and defendants No. 8 to 12 are directed to appear before the trial Court on 22.08.2025 on payment of process fee by the plaintiff the trial Court will issue summons for seeking their presence before the trial Court on the date so fixed by the trial Court. 10. With the aforesaid observation and direction, the first appeal is allowed and the matter is remitted back to the trial Court for adjudication of the case afresh, as per direction given above. 11. A decree be drawn up accordingly. Sd/- (Narendra Kumar Vyas) Judge Manish