Prakash Krishna, J. - (1.) ORIGINAL Suit No. 87 of 1988 was instituted by Mahant Jagat Narain Das (now deceased) against Defendants for permanent injunction restraining them not to interfere with the managing committee appointed by the Plaintiff on the pleas inter alia that there is an old Mandir which is being managed and run by religious trust Belwa. The said temple is situate in Mohalla Shekhpur, District Gorakhpur. There are other temples of Raghavram and other deities which are situate at different places. These deities own several agricultural land in different villages and after abolition of zamindari, the present Mahant namely, Mahant Jagat Narain Das through whom the suit was filed, is managing these trust properties. Further allegation is that the Defendant No. 1 and other Defendants are trying to interfere in the Plaintiff's peaceful possession over the trust property in dispute. It was also stated that by misrepresentation and fraud, a Will was obtained by the father of Defendant No. 1 in favour of Defendant No. 1, which has been got cancelled by a registered document dated 18.10.1984. The properties are waqf properties and belong to Sangat Belwa Trust. During the pendency of the said suit the Plaintiff Mahant Jagat Narain Das died.
(2.) THE suit is being contested by the Defendant No. 1. The dispute giving rise to the present writ petition arose on the death of the Plaintiff Mahant Jagat Narain Das on 13th February, 1989. An application for substitution was filed by present Respondent No. 2 Mahant Jagannath Das on 5th March, 1989 on the allegations that he has been appointed as Mahant by the deceased Plaintiff through a registered Will deed dated 27th December, 1988. Opposing the said substitution application, it was submitted by the Defendant No. 1/Petitioner that the Will in question could not have been validly executed by Mahant Jagat Narain Das (deceased) as Mahant Jagannath Das, Respondent No. 2, is an advocate by profession. Mahant Jagat Narain Das during his life time on 2nd August, 1984 as per custom of Udaseen Sampraday appointed Defendant No. 1 as Mahant, which has been approved by Uttar Pradesh Udaseen Mandal on 1st March, 1989. It is Defendant No. 1 who since 16th November, 1984 is Mahant and Sarwarakar and is managing the trust properties. The trial court by its judgment and order dated 28th May, 2005 rejected the substitution application No. 75 -A and declared the suit as abated as there was no one to prosecute it. The said order was challenged successfully by Mahant Jagannath Das, Respondent No. 2, in Misc. Appeal No. 31 of 2005. The appellate Court by the impugned order dated 23rd October, 2008 has allowed the appeal and set aside the order of the trial Court allowed the substitution application and directed the trial court to proceed with the hearing of the suit.
(3.) SHRI H.P. Mishra, learned Counsel for the Petitioner submits the following two points for consideration in the present writ petition. (1) Firstly, the misc. appeal before the court below against the order dated 28th May, 2005 was not maintainable. The revision was maintainable instead. (2) Secondly, on merits, the deceased Plaintiff could not have executed the Will deed in question in favour of Mahant Jagannath Das, who is an advocate by profession and is not Mahant.;