V.C.Misra - (1.) -Heard S/Sri A. K. Upadhyay learned counsel for the appellant, Dr. H. N. Tripathi learned counsel for the respondent-defendant No. 2 and R. N. Singh senior advocate, G. K. Malviya and A. K. Rai advocates on behalf of the applicants.
(2.) THE present second appeal was filed on 20.5.1997 thereafter the sole appellant Smt. Shyama Devi moved an Application No. 192395 of 2006, dated 13.9.2006 with a prayer to dismiss her present second appeal as withdrawn/not pressed through her learned counsel Sri A. K. Upadhyay. This withdrawal application is supported by an affidavit duly sworn by the appellant. Before the said withdrawal application could be disposed of one Shiva Kant Mishra moved an Impleadment Application No. 2216517 of 2006, dated 11.10.2006 with a prayer to be impleaded as appellant-proposed plaintiff through his learned counsel supported by an affidavit sworn by him. Another Application No. 89125 of 2007 dated 4.4.2007 has been moved by one Girish Singh for being impleaded as appellant-proposed plaintiff through counsel supported by an affidavit sworn by him. Dr. H. N. Tripathi, advocate learned counsel for the respondent No. 2 has submitted that he has no objection to the said withdrawal application dated 13.9.2006 moved by the sole appellant Smt. Shyama Devi seeking dismissal of the present second appeal. Learned counsel for the applicant Shiv Kant Mishra and Girish Singh seeking impleadment as appellants-proposed plaintiffs have strongly objected to the application of the appellant for dismissing the second appeal as not pressed/ withdrawn. Being aggrieved, the appellant-plaintiff filed the present second appeal. During pendency of the appeal, the sole plaintiff-appellant Ram Palat Chaturvedi died on 29.3.2002. The widow of Ram Palat Chaturvedi being sole heir and legal representative was substituted in the present second appeal as the sole appellant. It is she who has subsequently moved an application for dismissal of the second appeal as withdrawn/not pressed. Shiv Kant Mishra applicant has moved this application claiming himself as present Manager/Managing Trustee of the trust whereas Girish Singh has sought impleadment as one of the trustees and a beneficiaries of the trust being devoted worshiper of the idol of Shri Durgaji Mandir. The facts of the case in brief are that one Sri Chandrabali Shastri Brahmchari-defendant No. 1 founded a trust in the name of Shri Durgaji Mandir Trust to establish an Alopathy Medical College in the District Azamgarh. He executed a lease deed of 40 bighas of land of the trust on 29.3.1996 in favour of defendant No. 2-All India Children Care Educational Development Society, Azamgarh for establishing a Medical College. The possession was given and defendant No. 2 constructed the Medical College building. One Sri Ram Palat Chaturvedi who was the real younger brother of defendant No. 1 filed an Original Suit No. 128 of 1996. The said suit was filed in the name of "Ram Palat Chaturvedi aged about 79 years son of late Sri Bharat Chaturvedi, Manager and Trustee Shri Durgaji Mandir Trust situated at Chandeshwar Post Chandeshwar District Azamgarh" seeking relief for restraining the defendants from not interfering in the peaceful possession of the plaintiff-appellant and for further restraint by not making any further construction over the disputed property and that the above said lease be cancelled. The suit was dismissed by the Civil Judge, Azamgarh being not maintainable. Civil Appeal No. 15 of 1997 was also dismissed by the IIIrd Additional District Judge.
(3.) THE contention of the applicants seeing impleadment as appellants-proposed plaintiffs is on the basis that the trust being a public trust they should be allowed to watch and safeguard its interest in place of the present appellant who being an old person and failing to discharge the duties and responsibilities of the Managing trusties on account of old age had abdicated her post and therefore, she should not be allowed to withdraw the appeal. The learned counsel for the appellant in support of the withdrawal application has submitted that in view of the provisions of Order XXIII, Rule 1 of the Code of Civil Procedure, 1908, the plaintiff has a right to withdraw his suit at any stage and the appeal is the continuation of the proceedings and it is well established that the law provides an absolute right to the plaintiff to withdraw his suit or abandoned a part of his claim. It has been further submitted that the original suit was filed by Ram Palat Chaturvedi in his personal capacity addressing himself as a Manager/ Managing trustee of the trust seeking relief for being declared as such and the suit was dismissed vide judgment and order dated 16.1.1997, wherein it was held that since no right, title or interest of his was found in the trust therefore, he could not be declared as Manager/Managing trustee. The lower appellate court has also held that the plaintiff had failed to establish his locus standi to bring the suit and he was not entitled to any relief sought for. More so, in the present appeal since Smt. Shyama Devi appellant has been substituted as legal heir of Ram Palat Chaturvedi and as the suit had not been filed on behalf of the trust no person claiming on behalf of the trust can seek impleadment in such capacity and thus both Shiva Kant Mishra and Girish Singh have no locus standi to be impleaded as appellant-proposed plaintiff and also oppose to the withdrawal of the appeal by the appellant.;