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Girish Chandra & Another v. I Adj - WRIT - C No. 13140 of 1985  RD-AH 9506 (18 May 2007)
(Court No. 23)
Civil Misc. Writ petition No. 13140 of 1985
Girish Chandra and another Versus I Additional District Judge, Shahjahanpur and others.
Hon'ble S.U.Khan J
Heard learned counsel for the parties.
This writ petition was earlier allowed by me on 24.1.2007. On the said date no one was present on behalf of respondents. Today the said order has been set-aside on the restoration/ rehearing application filed by respondents.
Heard learned counsel for the parties on the merits of writ petition. Para 2 and part of para 3 of my judgment dated 24.1.2007 are quoted below as they contained the necessary facts:
"Petitioner No.2 Sri Thakur Ji Maharaj and Om Prakash filed O.S No. 345 of 1980 against Ram Mister, Madan Pal Singh, Om Pal Singh and Brij Pal Singh for prohibitory injunction. In the plaint, it was stated that sale deed executed by Ram Mister in favour of Madan Pal Singh and Om Pal Singh was void. The suit was dismissed on 17.8.1983. Against the said judgment and decree the plaintiffs filed Civil Appeal No. 110 of 1985 before District Judge, Shahajahanpur which was transferred for disposal to the court of Special Judge / A.D.J Shahjahanpur. During pendency of appeal Om Prakash Singh died. Petitioner No.1 Girish Chand son of Om Prakash filed application for his substitution/ impleadment at the place of Om Prakash. The said application was rejected through order dated 20.8.1985 and appeal was consigned to record. The said order has been challenged through this writ petition.
The property was endowed for the deity petitioner No.2 by Smt Yashoda through a registered deed. The said deed has been described, as Waqf Nama, copy of which is annexure 1 to the writ petition. In the said deed line of succession was provided and it was directed that after the death of the executant Om Prakash and Ram Mister would be the Mutawallis and Om Prakash being elder would be the Manager/ lumberdar. It was further provided that after the death of these persons the descendants would be the Mutawallis with the restriction that the elder son would be the Manager."
During pendency of writ petition Girish Chandra petitioner No.1 died and at his place his younger brother Vinod Kumar was substituted through order dated 24.1.2007 passed on substitution application No. 41540 of 1996.
Rama Mister respondent No.2 has also died and has been substituted by his heirs. As Rama Mister had himself executed the sale deed hence he was not expected to challenge the same. Accordingly Girish Chandra was fully authorised to pursue the appeal. There was no need to decide as to whether legally Girish Chandra could be Mutawalli /Managing Trustee in the presence of his uncle Rama Mister or not. As the allegation was that Ram Mister misused his position and illegally sold the trust property, hence, suit filed by Om Prakash could be pursued by his son Girish Chandra.
Now Girish Chandra has also died, hence, Vinod Kumar can pursue the suit. Ram Naresh Gupta son of Rama Mister who has been substituted at the place of Rama Mister claims to be elder to Vinod Kumar and he further asserts that under the Waqf / Trust deed the elder is to be the Mutawalli. However, as property was sold by Rama Mister father of Ram Naresh Gupta hence, Ram Naresh Gupta is also not expected to question the said sale deed. In such scenario Vinod Kumar is fully entitled to pursue the appeal. As Ram Mister was already respondent in the appeal hence he could not be substituted as appellant. Similarly his son Ram Naresh Gupta also can not be impleaded as appellant. The question as to whether Vinod Kumar is elder or Ram Naresh Gupta is elder is expressly left open. Let this question be decided in such proceedings where it is raised except the appeal in question.
Accordingly writ petition is allowed. Impugned order passed by the appellate court is set-aside. Vinod Kumar is directed to file fresh substitution application before the lower appellate court for his substitution and for substituting the heirs of respondent 2 and 3. Fresh substitution application must be filed before the lower appellate court for impleadment of the same legal representatives which have been impleaded in this writ petition. Fresh notice to respondent No. 4 and 5 shall also be issued.
Writ petition is accordingly allowed.
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