(1.) HEARD Sri B.K. Saxena, learned Counsel for the petitioner, Mohd. Arif Khan, Senior Advocate, assisted by Sri Manish Kumar, learned Counsel for the claimants/opposite parties and Standing Counsel.
(2.) AT the out-set, it is relevant to point out that on 12.12.2005 when this case was listed, none was present on behalf of the petitioner to press the writ petition. At that stage, a preliminary objection was raised by the respondent's counsel that writ petition is not maintainable on account of availability of alternative remedy and his objections were also recorded in the order. Accordingly, the writ petition was dismissed. Later on, petitioner moved an application and shown sufficient cause for his absence in the affidavit but on 12.1.2009, when this application came up for orders, again the petitioner's counsel was not present and as such the application for recall was also rejected for want of prosecution. Again Civil Misc. Application No. 72899 of 2009 was presented for recall of aforesaid both the orders and it was indicated therein that when the application for restoration was listed on 12.1.2009, inadvertently, it escaped attention of the Counsel for the petitioner. As the sufficient cause has been shown in the affidavits, the order dated 12.12.2005 shall be treated to have been recalled. Further, the Counsel for the parties consented that the case may be decided finally. Needless to mention here that on numerous occasions, the Apex Court had reminded that the cases should be decided on merits rather than on technicalities. It is in this background that the case was heard finally.
(3.) BRIEF facts, giving rise to the instant writ petition, are that that the property, bearing Nos. 264/1 to 53, measuring 27 Bigha, 2 Biswa, 2 Biswansi and 19 Kachwansi to the extent of half share, situated in village Suppa Rao, Pargana Tehsil and District Lucknow, was owned by one Sri Radhey Shyam (deceased). Shri Shyam Sunder Das was the son of Sri Radhey Shyam and Smt Janki Bibi was the widow of Shri Shyam Sunder Das, who died during the lifetime of his father Radhey Shyam. Petitioner-Gopi Krishna was the adopted son of Shyam Sunder Das and Smt. Janki Bibi.
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