DHIRENDRA PRATAP Vs. PREM NATH

JUDGEMENT

(1.) C. L. Verma, J. This revision has been filed against the order dated 15. 6. 96 passed by the learned Commis sioner, Azamgarh Division, in a revision filed against the order dated 27. 12. 95 passed by the trial Court where by it has allowed the substitution application.

(2.) BRIEFLY stated the facts of the case are that the plaintiff, Arjun, filed a suit u/s. 229-B of U. P. Z. A. & L. R. Act, with the prayer that the plaintiff be declared as bhumidhar over the disputed land as detailed at the foot of the plaint. During the pendency of the suit, plaintiff, Arjun, died. Substitution applications were moved by the parties. The learned trial Court by its order dated 27. 12. 95, after hearing both the parties, allowed the sub stitution application of the opposite-party, Prem Nath, the real son of deceased plaintiff. Aggrieved by that order, the revisionists went before the Commis sioner. The learned Commissioner dis missed the revision and confirmed the order dated 27. 12. 95 passed by the learned trial Court, vide the order dated 15. 6. 96. Against that order of the learned Commis sioner the present revision has come up before this Court.

(3.) I have considered the arguments put forth by the learned counsel for the parties and have carefully gone through the relevant papers on file. From the perusal of the file I find that the learned trial Court has held that the opposite-party, Prem Nath, is the real son of the deceased Arjun and hence ordered sub stitution of name vide his order dated 27. 12. 95. The learned Commissioner is of the view that the order of the learned trial Court is just and proper because the only son and natural heir of the deceased has been substituted vide order dated 15. 6. 96. The learned counsel for the revisionist has based his case on the will, but surprisingly enough the photo copy of the will has been filed which is also not attested and hence the same cannot be read into evidence. Apart from this no attempt has been made to prove the will by producing marginal witnesses which was necessary to be done. The rights of the revisionists are not protected by the provisions of Section 169 of U. P. Z. A. & L. R. Act, because he has failed to establish the theory of will. I do not find force in the contentions raised by the learned counsel for the revisionists and the case laws cited on their behalf are not applicable to the facts and circumstances of the instant case.