MATRU Vs. BHOLA

JUDGEMENT

(1.) THIS is a second appeal under Section 331 of the UPZA & LR Act (hereinafter referred to as the Act), preferred against the judgment and order, dated 13-9-1993, passed by the learned Additional Commissioner, Varanasi Division, Varanasi in Appeal No. 164/25 of 1985, abating the appeal in respect of the deceased Respondent No. 1, Man while proceeding with the same in respect of other respondents, fixing 5-10-1993 for hearing.

(2.) BRIEFLY stated, the facts, giving rise to the instant second appeal are that the plaintiff, Matru instituted a suit under Section 229-B of the Act against the defendants, Man etc. for declartion of his rights was co- tenant along with the defendants second set, disclosing the family pedigree. On notice, the defendants contested the suit, denying the allegations. The learned trial Court after completing the requisite trial, dismissed the suit of the plaintiff, vide its judgment and decree, dated 19-9-1995. The plaintiff went up in appeal before the learned Additional Commissioner, during the pendency of which, the Respondent No. 1 Man died and the appellant moved as substitution application for substitution of his heirs. The learned Additional Commissioner after hearing the parties concerned, vide his order dated 13-9-1993, abated the appeal in respect of the Respondent No. 1, Man and ordered the appeal to continue against the remaining respondents, fixing 5-10-1993 for hearing. It is against this order that the instant second appeal has been preferred by Matru before the Board.

(3.) CONSEQUENTLY, this second appeal is, accordingly, allowed, the impugned order passed by the learned Additional Commissioner is set aside the dealy is condoned the substitution application in question subject to payment is hereby allowed of Rs. 300/- (Rs. three hundred ) and the first appeal is hereby remanded to the learned lower appellate Court for decision, on merits, according to law, after affording an opportunity of being heard, to the parties, concerned. Let records be returned forthwith, to the Courts concerned. Parties to appear before the Court concerned on 16-4-2003. Appeal allowed. .