GAYA PRASAD Vs. STATE OF UTTAR PARDESH

JUDGEMENT

(1.) Heard.

(2.) In nutshell, the facts of the case are that the opposite party No. 6 Ram Lakhan initiated proceedings for division of shares/partition of the holding in question under Sec. 176 of the Act 1950 by instituting a suit on 23.10.1989. A compromise was arrived at between the plaintiff Ram Lakhan and his two other brothers namely Surya Narayan, opposite party No. 5 herein and Gaya Prasad, petitioner herein. Based thereon a preliminary decree was passed by the Court below on 7.2.1990. On 9.4.1996 the petitioner herein i.e. Gaya Prasad filed an application for proceeding to prepare the final decree in terms of the preliminary decree. This process started and reports were also requisitioned. Objections were also filed. But, on 21.4.2011 an application was filed by the opposite party No. 6-plaintiff for withdrawal of the said suit, to which the opposite party No. 5 filed objections. In spite of the objections the suit was dismissed as withdrawn on 16.12.2011 with the observations that if the plaintiff did not want to pursue his suit, he could not be compelled to do so.

(3.) The opposite party No. 5 being aggrieved filed an appeal, but during the appeal and without mentioning about the said appeal he also moved an application for preparation of a final decree before the Court where the suit under Sec. 176 had been filed and thereafter withdrew the appeal. On the said application of the opposite party No. 5 the order dated 8.5.2013 was passed by the S.D.M. Court by which the application of the opposite party No. 5 for preparation of final decree was accepted and the parties were asked to address the Court on the "Chitthi Batwara" and the objections in respect thereof. The plaintiff who had withdrawn the suit, did not challenge this order, but the petitioner herein who was a defendant in the suit challenged the same by filing a revision before the Addl. Commissioner under Sec. 333 of the Act 1950. The said revision was dismissed. It is against the aforesaid background that this writ petition has been filed.