LALLAN Vs. BANSHI

JUDGEMENT

(1.) The facts set forth in pleading by Banshi are : On 4-4-1972 he files a declaratory law suit under Sec. 229-B, Z.A. and L.R. Act in the court of Assistant Collector First Class, Gorakhpur. It is given out that name of defendant Lallan is erroneously noted in records ; that he is not son of Timal but is son of Bigai resident of Prayagpur ; that as a Lameta he had come to his household when his mother has re-married Timal, Thus he is act entitled to inherit his father Timal's interest in land. The relief of a declaration as bhumidhar tenant in possession he prays the court for.

(2.) The process to secure defendant Lallan's presence begins : a summon, a registered letter and, then, publication in a newspaper 'Gorakhpur Gazette'. Banshi adduces evidence. On 26-3-1973 the suit ex parte is decreed.

(3.) On 9-9-1981 defendant Lallan's motion under Order IX Rule 13 C.P.C.-to restore. The claimant plea is that decree dated 26-3-1973 is against the provision of law ; that he is real brother of Banshi and both of them are living in village Girihtya, Tehsii Maharajganj. On death of their father Timal the names of both have been mutated ; they are jointly, continuing in possession. But at the instance of hostile elements Banshi; has lodged a law suit and has maneuvered a decree misleading the court. More, his address is wrongly written ; the name of his father is changed from Timal to Bigal. More, he could not become aware of lawsuit by a summon or a registered post. The publication in a newspaper 'Gorakhpur Gazette' on 29-10-72 was for all intents and purposes ineffectual. Since he was in peaceful possession he had no occasion to brother about. There was no parodox of co-activity in possession with mutual avoidance. As respects : land of village Girihya, Banshi had lodged a lawsuit saying his name had been expunged from the land. In consequence he was stirred to inspect the records on 30-1-1981 ; this reveals a dismal aberration in a decree. The relief to set aside the order dated 26-3-1973 he prays the court for. As affidavit in proof is enclosed.