- (1.) RAM Janam Singh, J. This revision has been preferred by Raghubir Prasad against the judgment dated 3-6-99 passed by Additional Collector First Class, Kotdwar.
(2.) THE facts of the case are that the plaintiff-opposite-party filed a suit under Section 229-B of the UPZA and LR and against one Makhan Dass on the ground of adverse possession. Notice to the op posite-party was issued on 2-4-93 for 21-4-93. No proceeding took place on this date and the date was adjourned for 29-4-95. Again on this date the case was adjourned for 11-5-93. No proceeding could take place on this date and the case was again adjourned for 26-5-93. On 29-4-93 an ap plication was moved by plaintiff Mahant Govind Dass for service by publication. On this application no orders were passed on that date but on 11- 5-93 notices were issued because the Presiding Officer was busy in other official work. THE order for publication was passed on 11-5-93 which was published in one local paper 'jayant' under the seal and signature of Sub-Divisional Officer on 11-5-93. On 26-5-93 the order to proceed ex-pane was passed and on 28-5-93 the case was adjourned for 3-6-93. On this date oral evidence was recorded and on 2-7-93 the suit was finally decreed. After coming to know about the ex-parte decree the revisionist moved a restoration application on 19-7-97 for set ting aside the ex-parte decree. Defendant Makhan Dass had already died on 27-6-90 hence the said order was against a dead person. M/s. Birla International moved an application for impleadment on 27-2-98 on the ground that he has purchased the said land from the plaintiff Mahant Govind Dass. This impleadment applica tion was rejected by the trial Court against which a revision was preferred before the learned Additional Commissioner which j was allowed by the. learned Additional Commissioner on 6-3-99. This order was passed in Revision No. 22 of 97-98. THE trial Court dismissed the restoration ap plication against which this present revision is preferred. Heard the learned Counsel for the parties and gone through the records care fully. The learned trial Court rejected the restoration application on three grounds that the application under Order IX, Rule 13, CPC is not maintainable keeping in view the explanation given therein. The restoration was moved on 19-7-97. The appeal was preferred against this order on 22-5-98. The argument of the learned Counsel for the revisionist has force on the ground that when the order passed by the first appellate Court has been set aside by this Court on 8-12-99 it will be presumed that the appeal before the first appellate Court is still pending. Hence the explanation under Order IX, Rule 13, CPC will not come into effect. The second point for rejecting the restora tion application was delay in filing the restoration application. The learned trial Court was not satisfied with the explana tion given therein and the restoration ap plication was rejected being time barred and the third ground was that the revisionist has no interest and Will was known in the village. The order for publi cation was passed on 13-5-93 whereas the notice which was published in that newspaper was issued on 11-5-93 under the seal and signatures of the Sub-Divisional Officer. The paper in which the publication was made does not bear any place from where it is published, who is Editor, what is name of the Press and just one small piece of paper. The ex-pane decree which was passed in favour of Mahanl Govind Dass on the basis of ad verse possession, there is no evidence on record except that the statement of Mahant Govind Dass and the Pradhan. No extract of Khasra or Khatauni is there to prove as to on which date and in which year he entered into possession over the land in question. On 19-7-97 the revisionist on the basis of Will moved a restoration applica tion before the trial Court that he came to know about the ex-pane decree which has been passed in favour of Mahant Govind Dass and is moving for restoration for setting aside the said decree because the original tenure holder Makhan Dass has executed a Will deed in his favour and on the basis of that Will he should be implcaded as a party and the said ex-parte decree be set aside. He also mentioned in the application that Makhan Dass died in the year 1990 hence the ex-parte decree which has been passed against a dead per son is nullity. The conclusion of trial Court that the Will which has been executed by Makhan Dass in favour of Raghubir Prasad is forged and fictitious, is against the ev idcnce on record because neither the margi nal witnesses nor any other evidence is on record to prove that the Will which has been executed by Makhan Dass is forged one. It needs a critical analysis on the basis of evidence which should be taken after Raghubir Prasad is impleaded and is allowed to adduce evidence to prove the Will. In case the Court comes to the conclusion that the Will executed by Mak han Dass is not forged one then definitely Raghubir Prasad is there. In the instant case without evidence no Court can draw such conclusion that any document is Farzi or is genuine. It can be proved only by nature of producing evidence. These are the circumstances which compel this Court to interfere in the findings given by the learned trial Court. The explanation of Order IX, Rule 13, CPC will not come in way because the order passed by the first appellate Court has been set aside by this Court on 8-12-99 and it will be presumed that the appeal before the first appellate Court is still pending. Hence the argu ments of the learned Counsel for the op posite-party does not have any force. The facts of the case reported in 1983 AIR SC 1397, are different from the present one. In this citation the Hon'ble High Court had dismissed the appeal as belated and highly time barred and whereas in the present case the order passed by the first appellate Court has been set aside, hence the ex planation will not come in the way. 8. On the basis of discussion made in the preceding paragraphs I am of the view that the order dated 3- 6-99 passed by the trial Court deserves interference. Revision is allowed ; the order dated 3-6-99 is set aside ; restoration application is allowed and the case is sent back to the learned trial Court for decision according to the proce dure laid down under the Act. Revision allowed. .;