- (1.) HEARD Ms. Sujata Srivastava, learned counsel for the petitioner as well as Mr. D.N. Srivastava learned counsel for the respondent and perused the record.
(2.) LEARNED counsel for the petitioner has challenged the order dated 10th October 2007 passed by the Civil Judge, E.C. Act Gonda, whereby the application for substitution moved by the opposite party No.2 to substitute herself as daughter of Ram Narayan appellant has been allowed by condoning the delay in moving the application at the cost of Rs.500/ -. Ram Narayan (deceased) filed Suit No. 45 of 1980 in the Court of Civil Judge, Gonda for possession and declaration of title of the house in question against late Ram Kali wife of late Kashi Ram on the basis of sale deed executed by one Sri Gauri Shankar. Owner of the house Kashi Ram was alleged to be tenant of the said house. Ram Narayan failed to establish his ownership, and suit was dismissed. He filed an appeal being Appeal No. 124 of 1987. During the pendency of appeal he died on 14.12.1994 leaving behind one son Mangal Pandey and daughter Kaushalya Devi (opposite party NO.2).
(3.) ONE Archana Gupta neice of Ram Narayan, filed an application for substitution in place of Ram Narayan on the basis of unregistered Will allegedly executed by Ram Narayan in her favour. Her application was rejected, she also filed an appeal that too was dismissed. The opposite party No.2 Kaushalya Devi also moved an application for substitution of daughter of Ram Narayan which was delayed. She explained the delay in the manner that she entrusted to Archana Gupta to do the parivi of the case, but she committed fraud and herself claimed legal heir of Ram Narayan on the basis of forged sale deed. Since opposite party No.2 trusted faith over Archana Gupta, she could not move an application for substitution, timely but when she came to know about the fraud committed by Archana Gupta, immediately she moved an application for substitution. So far as, son of Ram Narayan is concerned she submitted that he was not traceable for 31 years, therefore she being present as sole heir of Ram Narayan had filed an application for substitution. The petitioner filed an objection against the application for substitution moved by the opposite party No.2 and submitted that the opposite party No.2 had full knowledge to move the application for substitution by Archana Gupta and her husband. Since all the facts were in her knowledge, therefore, it could not be said that she was not aware about the proceeding of the case. Petitioners contended that the son of Ram Narayan namely Malgal Prasad is still alive, therefore there is no occasion for Archana Gupta to claim herself as sole legal heir of Ram Narayan.;