M.L. Bhat, J. - (1.) THIS is an appeal against the order of the 1st Additional District Judge, Varanasi dated 23 -4 -1982 whereby, application of the Appellant for setting aside the ex -party order dated 21 -1 -1978 in Misc. Case No. 269 of 1977 was rejected.
(2.) FROM the perusal of the record it appears that one Ras Behari Paranhans had executed a will on 28 -4 -1937 appointing three shebaits. These were.: 1. Surendra Nath Roy 2. Ashutosh Roy Panna Lal Misra. 3. It is alleged that Surendra Nath had died. Ashutosh Roy is also said to have died and it is alleged by the Respondents that he had executed a will in favour of his son Vibhuti Roy in 1945 with regard to the rights of shebait. The said Vibhuti Roy is said to have surrendered and relinquished his rights in favour of Madan Mohan. Pathak, the Respondent. Appellant claims to be son of Panna Lal Misra one of the shebaits. There was a probate case on the basis of the will of 1939 and letter of probate was issued in favour of three persons. Respondent made an application that he be substituted for Vibhuti Roy who was claiming through Ashutosh Roy on the ground that said Vibhuti Roy had relinquished his share. Notices are said to have been issued in the said application to the interested parties but the notices are reported to have been sent on wrong addresses. Respondents claims that on the basis of the statement given by Vibhuti Roy he was included in the letter of probate in place of Vibhuti Roy. In May 1978 Appellant filed an application for setting aside the order dated 21 -1 -1978 by which Respondent was made a shebait.
(3.) FATHER of Madan Mohan, Respondent, one Tarkeshwar Pathak, was tenant of the portion of the suit property and a suit for eviction was brought against him. Tarkeshwar Pathak's; tenancy rights in the property had fallen on the Respondent Madan Mohan. During the pendency of the suit Madan Mohan got himself appointed as shebait.;