JASWANT SINGH Vs. RAM SINGH

JUDGEMENT

(1.) This is a second appeal against the order of the Additional Commissioner, Agra Division, Agra dated 26-5-1988 dismissing the appeal against the order of Sub Divisional Officer, Hathras dated 27-4-1987 rejecting the application for restoration moved by the appellant Jaswant Singh who was defendant no. 3 in the original suit.

(2.) Briefly stated the facts of this case are that the respondent no. 4 Hakim Singh had filed a suit for partition under Sec. 176 of U.P. Act No. 1 of 1951 in which judgement and preliminary decree were passed and the shares of the parties were determined. The plaintiff and all the four defendants were held to be having ⅕th share each since all the 5 parties are real brothers. Thereafter Ram Singh, one of the defendants, applied for preparation of final decree on 1-3-1984. Notices were ordered to be issued and a final decree was prepared on the basis of the quarras submitted by the lekhpal prepared on 13-12-1984.

(3.) Jaswant Singh the present appellant filed an application under order 9 rule 13 of Civil Procedure Code before the trial court on 21-9-1985. Hakim Singh had already filed an appeal against the final decree before the Commissioner on 9-1-1985 which was dismissed by the Additional Commissioner on 19-9-1985.