SHANKER LAL Vs. ADDL COMMISSIONER

JUDGEMENT

(1.) Petitioner has instituted this petition aggrieved by the judgment/order of the Addl. Commissioner dated March 3, 2005 passed in revision which was preferred against the judgment and order of the trial Court dated 3-11 -2004 by which restoration applications dated 19-1-2004 and 14-9- 2004 were allowed and ex parte decree passed by the trial Court dated 28-10-2003 was set aside.

(2.) The factual matrix is this. The property in dispute consists of plot No. 208/2 admeasuring 63 acre and plot No. 208/6 admeasuring 5 decimal situated in village Ruppanpur alias Paigambarpur, Pargana Shivpur Tahsil and District Varanasi. This land was initially recorded in the name of Sri Sita Ramji Trust situated in village Pul Kohna Pargana Shivpur Tahsil and District Varanasi. The plaintiff-petitioner instituted suit under Section 229-B of the UPZA and L.R. Act before Sub-Division Officer Varanasi for the relief of declaring him as bhumidhar over the land in suit to the exclusion of Sri Sita Ramji Trust aforestated. The claim of the petitioner was founded on the premises that he had acquired rights by adverse possession; that Sri Sita Ramji Trust was im- pleaded as defendant No. 1 through Shanker Lal Kapoor and Jitgendra Lal Kapoor both sons of Panna Lal Kapoor resident of CK 8/ 100 Garhwasi Tola Chowk City Varanasi; that the defendant No. 1 did not appear and the suit proceeded ex parte and it culminated in decree on 28-10-2003. It would appear from the record that an application was moved by Defendant Sri Sita Ramji Trust through Smt. Shanti Devi widow of late Sri Jangi Lal Kapoor, former Manager of the Trust on the ground that Jangi Lal Kapoor was the manager of the Trust and the applicant was his widow also stating that the property vested in the trust and that the plaintiff filed the suit in collusion with Shanker Lal and Jitendra Lal Kapoor; that the plaintiff was not in possession over the land and further that the Trust never entered into compromise admitting the adverse possession of the plaintiff over the land, nor plaintiff. It was further stated therein that the order was obtained behind the back of the actual Manager in collusion with the persons impleaded as managers. The objection was filed by plaintiff in which he has admitted that Jangi Lal Kapoor was the manager of the Trust who died on 2-12-90. He further submitted that Smt. Shanti Devi was not elected in any capacity after the death of Jangi Lal Kapoor and she thus was not a party and therefore, no right to file recall application accrued in her favour. It was further stated that there was compromise between Shanker Lal Kapoor and Jitendra Lal Kapoor on one hand and plaintiff on the other hand, in which possession of plaintiff was admitted. It was also alleged that two restoration applications were filed in the matter and by means of order dated 3-11-2004, the restoration application was allowed and ex parte decree was set aside and suit was restored to its number.

(3.) Initially, Sri Shashi Nandan, Learned Senior advocate argued the case in this matter and subsequently Sri Sankatha, Rai, learned Senior Counsel assisted by Manish Kumar Srivastava argued the case at prolix length.