RAMA KANT Vs. MURLIDHAR

JUDGEMENT

(1.) THIS second appeal has been filed against the order dated 13-7-1998 passed by the Additional Commissioner, Allahabad in Appeal No. 9/14 of 1996-97 dismissing the appeal and confirming the order dated 14-6-1996 passed by the trial Court refusing to recall exparte final order dated 23-3-1995.

(2.) HEARD the learned Counsel for the parties at length. The counsel for the appellant argued that Murlidhar filed partition suit under Section 176 ZA and LR Act in which his brothers Ramakant and Mohanlal were made defendants. Notices were pasted on the house of Ramakant and preliminary decree was passed on 9-2-1993, thereafter Mohanlal filed a restoration application on the same day which was rejected by the SDO on the ground that there is no dispute for the share and objection, if any, can be raised at the time of final decree; that by the order dated 9-2-1993 no date was fixed for final decree. On 8-3-1995 on application was moved by murlidhar to summon the Lekhpan, no notice was issued to defendant. Lekhpal filed report and recorded his statement and final decree was passed behind the back of the defendants. He further argued that Ramakant and Mohanlal are living jointly and they want that their share should be allotted together. On 29-3-1995 Ramakant moved restoration application which was dismissed in default on 28-9-1995. Against that order a restoration application was filed along with the affidavit on 13-10-1995 which was rejected by the trial Court and the Additional Commissioner has dismissed the appeal holding that the appeal is time barred.

(3.) I have gone through the file carefully. It is clear that there is no dispute as far as share is concerned and the prayer of appellants is that they should be given plots together. It is clear from the trial Court file that after passing the preliminary decree many dates were given and finally on 23-3-1995 final decree has been passed. Hence, I do not see that the SDO was wrong in rejecting the restoration application moved by the appellant. Moreover, in this second appeal, no substantial question of law is involved. Accordingly, this second appeal is hereby dismissed. Let the records be returned forthwith to the Court concerned and this Court's file be consigned to the record room. This order will govern SA No. 53 of 1997-98/Alld. Appeal dismissed.