JUDGMENT : 1. Heard further argument and judgment is as follows: 2. Defendant Nos. 1, 2 and 3 in Title Suit No. 362 of 1994 of the court of learned Civil Judge (Senior Division) 1st Court, Cuttack.are the Appellants in challenging the judgment and decree dated 17.9.1998 and 15.10.1998 respectively, granting a decree for partition of the suit properties and allotting 1/4th share in the same to the Plaintiff. 3. The admitted genealogy amongst the parties runs as follows: Lokanath Bamadev Bansidhar Malati Dibya (W)(Plaintiff) Chhaya (W) (D.2) Amulya (D.4) (Adopted son) Hemanta(D.1) Basanti (D.3) (Son) (Daughter) 4. The case of the Plaintiff is that Bamdeb Tripathy, the elder brother, finding it difficult to manage himself in his native village, undertook a job with TISCO and earned a fortune for him not only by rendering service, but also by doing business. He also brought and put his brother Bansidhar as a Class-IV employee under TISCO posted in Keonjhar and dealt with him affectionately throughout. In course of time, he purchased some lands at Joda under two registered sale deeds; on each occasion, the extent of land being Ac.1.52 dec., but for different considerations. Though Bamdeb paid the consideration out of his own income, but out of love and affection for Bansidhar, in both the registered sale deeds he mentioned the name of the younger brother as co-purchaser. On the properties so acquired, he constructed a house and shop rooms and tenanted them. Late Bamdeb also purchased an area measuring 184 dec. at Cuttack and started a petrol pump in the name of M/s Tripathy Petrol Supply by investing the sale proceeds of his truck. The assets and accessories and stock in trade have been described in Lot Nos. 1 and 3 of the plaint. It is the further case of the Plaintiff that Defendant No. 4 being her adopted son was enjoying the confidence of Bamadev and therefore, when Defendant No. 4 was a boy of 22 years old, Bamdeb who had moved over to Cuttack executed a General Power of Attorney in his favor to look after the business in Keonjhar together with Bansidhar. It is alleged by the Plaintiff that Bansidhar persuaded Bamdeb to execute such document inasmuch as Bansidhar had managed to earn confidence of Defendant No. 4. It is alleged by the Plaintiff that Bansidhar persuaded Bamdeb to execute such document inasmuch as Bansidhar had managed to earn confidence of Defendant No. 4. She further alleged that after execution of the Power of Attorney by Bamdeb, Bansidhar could influence Defendant No. 4 and behind the back of Bamdeb and the Plaintiff, the document evidencing partition between Bamdeb and Bansidhar was created. After the death of Bamdeb, the Plaintiff was neglected both by Bansidhar and Defendant No. 4 and thereafter on verification, she could learn about the aforesaid clandestine partition to deprive the Plaintiff from her legitimate share. She therefore, filed the suit in which she claimed for 1/4th share in the suit properties. 5. Defendant No. 4 in his written statement while substantially admitting the aforesaid case of the Plaintiff, simply denied the allegations of neglect to maintain the Plaintiff. Defendant Nos. 2 to 3 filed a joint written statement, inter alia, disputing each of the contentions raised in the plaint. In addition to that, taking the stand that after partition between Bansidhar and Defendant No. 4 as the power of attorney of Bamdeb, Bansidhar also partitioned the property which fell to his share among himself, his wife/ Defendant No. 2 and son, Defendant No. 1 through a compromise decree in T.S. No. 957 of 1988. Accordingly, they claimed that the prayer for partition as laid by the Plaintiff is not maintainable. 6. In course of hearing of the suit, Defendant Nos. 1 to 3 did not participate and therefore, they were set ex parte. On consideration of the evidence adduced by the Plaintiff and Defendant No. 5, the trial court passed a decree for partition allotting 1/4th share to the Plaintiff, 1/4th share to Defendant No. 4 and remaining 1/2 share to Defendant Nos. 1 to 3 jointly. 7. Admittedly, Appellants/ Defendant Nos. 1 to 3 did not adduce any evidence because they were set ex parte. Mr. Mishra, Learned Counsel for the Appellants argues that the trial court did not conduct the suit in a proper manner according to the procedure established and therefore, the ex parte decree is liable to be set aside. In furtherance thereof, he states that the suit was dismissed for default on 11.12.1996, and thereafter, the Misc. Mr. Mishra, Learned Counsel for the Appellants argues that the trial court did not conduct the suit in a proper manner according to the procedure established and therefore, the ex parte decree is liable to be set aside. In furtherance thereof, he states that the suit was dismissed for default on 11.12.1996, and thereafter, the Misc. Case under Order 9, Rule 9, CPC was considered and the suit was restored and thereafter when the suit was taken up for hearing Defendant Nos. 2 to 3 were not on picture. He argues that though notice was issued in both ways, i.e., through court process and registered post with A.D., at No. point of time the Presiding Officer took care to verify about the status of S.R. issued through court and therefore, the order passed for restoration excluding the opposite parties to contest and the ex parte decree passed against Defendant Nos. 1 to 3 be set aside. On perusal of the record and relevant orders, we do not find any merit in the aforesaid contention in view of the provision under Order 5, Rule 19A, which was then very much prevalent in Code of Civil Procedure, inasmuch as that provision was deleted only with effect from 1.7.2002. It appears from Order No. 26 dated 21.7.1997 that Defendant Nos. 1 and 2 refused to receive the notice issued in the Mise. Case, i.e., the notice to show cause for restoration of the suit. According to Order 5, Rule 19A such refusal is sufficient to hold sufficiency of service. It further reveals from Order No. 27 dated 31.7.1997 that after expiry of 30 days, from the date of issue of the notice by the registered post with A.D. that notice against opposite party No. 3, i.e., Defendant No. 3 was held sufficient. The aforesaid order of the learned Civil Judge (Senior Division) by No. stretch of imagination can be termed as illegal, unjust or improper. Defendants-Appellants do not establish on record that notices issued through court carried wrong address or that the Defendants were not present at the address when such notices were offered. The aforesaid order of the learned Civil Judge (Senior Division) by No. stretch of imagination can be termed as illegal, unjust or improper. Defendants-Appellants do not establish on record that notices issued through court carried wrong address or that the Defendants were not present at the address when such notices were offered. The job which was to be undertaken by the Appellants to set aside the ex parte decree passed decades back, cannot be rid of by simply saying that the Presiding Officer did not record the due service of notice sent through court when he has No. legal obligation to make comparison of both the S.Rs. 8. The same analogy is equally apply when the notices to the Defendants were issued for hearing of the suit after restoration of the suit as per order dated 12.2.1998. Therefore, the Defendants-Appellants cannot put forth their grievance on the ground of insufficiency of notice. 9. Defendant Nos. 1 to 3 in their written statement while denying the plaint averments never claimed exclusive title of Bansidhar over any of the properties described in Lot Nos. 1, 2 and 3. Even if the Plaintiff claimed that her late husband Bamdeb out of his own money created all the properties and business, yet, she did not ask for depriving Bansidhar to get 1/2 share from out of the property. Her grievance against Bansidhar is only about the clandestine manner in which the property was attempted to be siphoned by influencing the Defendant No. 4 and getting the partition deed executed by him when father was living and not bringing the same to his notice. In that contest, on perusal of the power of attorney, Ext.E, it transpires from internal page No. 2 that the executants of the power of attorney, i.e., Bamdeb stated that "and in my absence, all transactions be made with the consent of the adoptive mother, Srimati Malati Tripathy". 50 far as the present suit is concerned, it is nobody's case that while effecting partition between Bansidhar and Defendant No. A, either it was intimated to Bamdeb or in his absence to the Plaintiff. Apart from that Defendant No. 4 even if acting on behalf of Bamadev, could not have entered into a transaction or agreement affecting rights of the Plaintiff. By giving any approach to the plea advanced by Defendant Nos. Apart from that Defendant No. 4 even if acting on behalf of Bamadev, could not have entered into a transaction or agreement affecting rights of the Plaintiff. By giving any approach to the plea advanced by Defendant Nos. 1 to 3 on the partition between Bamdeb and Defendant No. 4, we find that legally that claim is not sustainable as against the claim led by the Plaintiff. Apart from that, the allegation of the Plaintiff about modus operandi of Bansidhar is concerned, the same is readable not only from the aforesaid conduct for effecting partition with the nephew, but also thereafter instituting a suit and effecting a compromise partition between himself and Defendant Nos. 1 and 2. Therefore, the grievance of the Appellants to adhere to the earlier partition is also neither sustainable legally nor on equitable consideration. 10. Thus, the aforesaid two contentions raised by the Appellants are of No. merit because of the aforesaid discussions and finding. The other contention regarding equity also does not lie in favor of the Defendants-Appellants for the reasons stated in the preceding paragraphs. We may add here that the decree, which has been passed between Bansidhar and his wife and son, is not binding on Bamdeb or his legal successors because none of them was party in that suit. Under such circumstances, the said decree does not in any way interfere or supersede the decree, which has been passed for partition in the present suit. 11. No. other point is canvassed for consideration. Hence, we find this appeal to be devoid of merit and accordingly, dismiss the same by confirming the judgment and decree of the trial court. Before parting with the case, we observe that in course of final decree proceeding, care should be taken by the court to adjust any property transacted by either of the parties in such manner that the share remains proportionate and equally divided. Under the given facts and circumstances, we direct the parties to bear their cost of litigation in this forum. Final Result : Dismissed