S. U. Khan, J. - (1.) -At time of argument, no one on behalf of contesting respondents was present hence only the arguments of learned counsel for the petitioner were heard.
(2.) THE relevant pedigree through which contesting parties are related to each other is given below : Mata Dayal........................................................... Ram Lal Mathura........................Makdum Shitla Prasad ....................... ...................................... Brij Mohan Radhey Res. No. 1 Shyam Res. No. 2 Chameli = Hira Lal Lakhpati = Jagannath Kailash Nath .............................................. Petitioner Shiv Munna Paras Ghanshyam Shanker Lal Nath Das Res. No. 4. Mathura was issueless. His brother Makdum had two daughters Chameli Devi and Lakhpati. Smt. Lakhpati had only one son Kailash Nath Gupta, the petitioner. Smt. Chameli Devi had four sons, Shiv Shanker and three others. Mathura on 18.4.1944, executed a Will deed bequeathing his property including four houses to petitioner and Shiv Shanker jointly. Afterwards Smt. Chameli asserted that Mathura executed another Will on 21.10.1948 bequeathing his property in favour of the other sons of Smt. Chameli, i.e., Munna Lal, Paras Nath and Ghanshyam Das. In respect of agricultural property bequeathed by Mathura dispute arose in mutation proceedings and it appears that the case of petitioner Kailash Nath Gupta and Shiv Shanker was accepted and it was held that the first Will executed by Mathura dated 18.4.1944 was his last Will meaning thereby that the subsequent alleged Will dated 21.10.1948 was not found to have been executed by Mathura. Admittedly in the year 1944 petitioner and Shiv Shankar were minors.
(3.) PETITIONER filed a suit basically against Shiv Shanker for partition of the four houses bequeathed through the Will of 1944 being O. S. No. 10 of 1964, before Civil Judge, Jaunpur. However, in the suit Chameli Devi and her other three sons were also impleaded as defendants. It was alleged in the plaint of the said suit that by virtue of Will of 1944 plaintiff petitioner and Shiv Shanker defendant No. 1 were joint owners of the four houses. It was further alleged that the other defendants were being impleaded in order to avoid any complication or dispute, however, they had no right in the suit property, i.e., four houses. During the trial of the said suit, one Ram Pratap was examined as defendant's witness. While his examination was in progress he stated that earlier the matter had been referred to arbitration and he was one of the arbitrators and arbitrators had given award on 26.5.1949 which was registered. Sri Ram Pratap filed copy of the registered award in the suit during his examination whereupon a Misc. Case No. 17 of 1965 was registered by the same court under Section 14 of Arbitration Act, 1940. The said misc. case was dismissed on 18.11.1965 on the sole ground that original award had not been filed hence arbitration proceedings were misconceived and not maintainable. However, 8 days before the said order, i.e., on 10.11.1965, original award had already been filed in the Court. Against order dated 18.11.1965, a revision was filed in this Court being Civil Revision No. 191 of 1966. The said revision was dismissed on 18.9.1968, copy of the judgment is Annexure-6 to the writ petition. The complete order dated 18.9.1968, is quoted below : "I agree with the court below that the Court could not act on the basis of the certified copy of the award. The original award or signed copy thereof should have been filed as prescribed by Section 14 (2) of the Arbitration Act. The original award was, however, filed on 10th November, 1965. It will be open to the court below to issue notice of the filing that award and to proceed in accordance with law. With these observations this application in revision is dismissed with costs. Signed S. K. Verma 18.9.1968." In view of the observations of the High Court in the above order a fresh suit in the form of Suit No. 102 of 1971, was registered on the basis of original award (it is not clear that why the suit was registered after about 3 years). In the said suit notices were issued. Petitioner filed objections, which were registered as Suit No. 67 of 1972. Both the suits were disposed of together by common judgment and Civil Judge, Jaunpur rejected the objections of the petitioner and made the award, rule of the Court through judgment and order dated 29.2.1980. Against the said judgment and order petitioner filed Misc. Civil Appeal No. 98 of 1980 and Civil Revision No. 111 of 1980. Appeal and revision were heard and disposed of together by IIIrd Additional District Judge, Jaunpur through order dated 31.8.1988, dismissing both of them. Through this writ petition the aforesaid judgments and order dated 29.2.1980, passed by the Civil Judge, Jaunpur and order dated 31.8.1988, passed by the IIIrd A.D.J., Jaunpur have been challenged.;