BACHCHA RAI Vs. IIIRD ADDITIONAL DISTRICT JUDGE DEORIA

JUDGEMENT

(1.) Heard learned Counsel for the parties.

(2.) Both the Petitioners-Plaintiffs instituted Original suit No. 1218 of 1985 against Shri Kishun, Smt. Asharfa and Respondent Nos. 2 to 8 Ajai Kumar and others. The suit was decreed by 1st Additional Munsif, Deoria on 29.7.1987 restraining the Defendants from interfering in the possession of the Petitioner over the property in dispute. Defendant No. 2 Smt. Ashrafa was also restrained from transferring the land in dispute to any one else. Three sale deeds were executed by Defendant No. 2 Smt. Ashrafa, dated 4.10.1985 in favour of Defendant No. 3, dated 4.10.1985 in favour of Defendant Nos. 4 and 5 and dated 7.10.1985 in favour of Defendant Nos. 6 to 9. Both the Plaintiffs and Defendants Nos. 1 and 2 belong to the same family. Mst. Ashrafa was widow of Shri Faujdar Rai. Pedigree is given in the judgment of the Trial court dated 29.7.1987 which is Annexure-1 to the writ petition. The name of Mst. Ashrafa was recorded in the revenue record over the agricultural land in dispute. However, contention of the Petitioners was that it was entered for the purposes of maintenance. Against the judgment and decree passed by the trial court an appeal being Civil Appeal No. 228 of 1987 was filed before the District Judge, Deoria purporting to be on behalf of all the Defendants including Shri Kishun and Mst. Ashrafa. During pendency of appeal Respondent Nos. 2 to 8/Defendants 3 to 9 filed restoration application before the trial court under Order 9 Rule 13 Code of Civil Procedure on 18.7.1989 which was registered as Misc. case No. 150 of 1989. However, the said case was dismissed in default on 4.9.1993. Thereafter another restoration application was filed which was dismissed on 22.4.1997.

(3.) Shri Kishun and Smt. Ashrafa have now died. Thereafter Petitioners filed an application in Civil Appeal No. 228 of 1987 on 18.12.1995 praying for dismissal of the same as incompetent on the ground that memorandum of appeal had not been signed by the Appellants and guardian ad litem of the minors Appellants who are Respondents No. 2 to 5 in this writ petition In the appeal Uma Shankar-Respondent No. 4 in this writ petition filed an application that appeal was fraudulently filed and decree in the suit had been obtained behind the back of the minors. In the appeal II Ird Additional District Judge, Deoria where it was pending passed an order on 31.7.1998 which has been challenged through this writ petition. Copy of the said order is Annexure-6 to the writ petition.