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Ramji & Another v. Ist A.D.J., Vns. & Others - WRIT - C No. - 5705 of 1981  RD-AH 15254 (10 September 2007)
HIGH COURT OF JUDICATURE AT ALLAHABAD
(Judgment reserved on 22.08.2007)
(Judgment delivered on 10.09.2007)
Civil Misc. Writ Petition No.5705 of 1981
Ram Ji and another Vs. Ist A.D.J., Varanasi and others
Hon'ble S.U. Khan, J.
In this case, arguments were heard and judgment was reserved on 22.08.2007. Copy of the said order (on the order-sheet) is quoted below:-
"Heard learned counsel for the parties.
Sri G.N.Verma learned counsel for the respondent plaintiff states that he is confining his claim to the half property in the sale deed. Jagarnath and Bishwanath were real brothers. Jagarnath executed sale deed in favour of the petitioners which was challenged by sons of Bishwanath. Suit was decreed exparte; restoration application was dismissed; appeal was also dismissed, hence, this writ petition. Learned counsel for the petitioner has shown katchi copy of the sale deed. He is directed to file typed copy of the sale deed by tomorrow after serving a copy of the same upon learned counsel for the respondent."
Typed copy of the sale deed was thereafter supplied.
Original respondents No.3 to 5, Lal Chand and others, sons of Bishwanath instituted O.S. No.679 of 1971 against Ramji and Dukhharan petitioners and Jagarnath-respondent No.6. Through the plaint of the said suit, cancellation of sale deed dated 05/06 January,1968 executed by Jagarnath in favour of the petitioners was sought. In Para-6 of the plaint, it was stated that petitioners defendants No.1 & 2 illegally and fraudulently induced respondent No.6 defendant No.3 to execute the sale deed of the property of the plaintiffs and his own, i.e. of defendant No.3. At the end of the plaint, pedigree was also given. Shiv Ratan has been shown to be great grand-father of Jagarnath as well as Bishwanath.
The suit was decreed ex parte on 06.09.1972. Petitioners filed restoration application on 03.03.1973, which was registered as Misc. Case No.08 of 1973. IIIrd Civil Judge, Varanasi rejected the restoration application on 25.07.1979. Against the said order Misc. Civil Appeal No.136 of 1979 was filed, which was also dismissed on 11.11.1980, hence this writ petition. Both the courts below thoroughly examined the evidence and disbelieved the version of the petitioners that they were not aware of the pendency of the suit. Prima facie, the findings are findings of fact. However, in view of the statement of learned counsel for the plaintiffs' respondents given on 22.08.2007, quoted above, it is not necessary to decide this question finally. True copy of the ex parte judgment and decree dated 06.09.1972 passed by IIIrd Civil Judge, Varanasi in O.S. No.679 of 1971 has been annexed as SA-1 to the supplementary affidavit dated 04.04.2007 filed by the petitioners. Through the said decree, entire sale deed dated 05.01.1968 has been cancelled. During the arguments in this writ petition, none of the learned counsel disputed that Bishwanath and Jagarnath had equal share in the properties sold through the sale deed in question regarding cancellation of which the suit giving rise to the instant writ petition was filed.
In my opinion, in view of the following facts, it will not be appropriate to minutely examine and dissect the evidence and the reasoning given by both the courts below for rejecting the restoration application:-
(i) Learned counsel for the plaintiffs respondents has categorically stated that he is confining his relief only to half of the sold property.
(ii) No argument has been raised questioning equal share of Bishwanath with Jagarnath in the property in dispute.
(iii) In view of the above, suit could be decreed for cancellation of sale deed only to the extent of half share of plaintiffs and not in respect of half share of Jagarnath, who never questioned the sale deed executed by him.
(iv) Prima facie, findings recorded by the courts below while rejecting restoration application are findings of fact.
(v) Several parties in this writ petition have died and have been substituted by their legal representatives.
(vi) Sale deed was executed 39 years before, accordingly it will be extremely difficult for any of the parties to adduce reliable cogent evidence in support of his pleas taken in his pleading. (In the suit, no evidence had been adduced when it was decreed ex parte except the one sided statement/ affidavit of plaintiff).
Accordingly, writ petition is disposed of in the following manner:-
Ex parte decreed dated 06.09.1972 passed by IIIrd Civil Judge, Varanasi in O.S. No.679 of 1971 shall be treated to have cancelled the sale deed dated 05.01.1968 in respect of 50% share of the property in dispute which belonged to Bishwanath. The sale deed in respect of half share of Jagarnath shall remain valid. Both the parties are at liberty to file suit for partition, if considered necessary.
Writ petition is accordingly disposed of.
In the end it may be mentioned that the statement of the learned counsel for the plaintiffs made on 22.08.2007 has saved a lot of embarrassment to the parties as well as Court. Even if the Court had found the impugned orders erroneous in law still remand of the matter to the Trial Court after 36 years from its filing for deciding the suit on merit would have caused a lot of inconvenience to all the concerned.
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