Indrajit Chatterjee, J. - (1.) This civil order under Article 227 of the Constitution of India has been preferred as against the order dated 14 -9 -2012 passed by the learned 4th Additional District Judge at Alipore as passed in Misc. Case No. 11 of 2009 wherein the learned court below was pleased to reject the prayer of the present petitioners to recall the order dated 13 -07 -2009 in which the said learned court was pleased to allow the application filed by the opposite party under Sec. 34 of the Indian Trust Act, 1882 (hereinafter called as the Act of 1882) for his appointment as the sebait of the debottor property of "Iswar Goureswar Shiv Thakur". The history of this case can be stated below: - - "One Gour Chandra Bag created one debottor property in the name of the said deity as referred to above as per a deed of settlement (Arpannama). As per the stipulation of that deed of settlement, Gour Chandra Bag became the first sebait. The "Arpannama" was executed and registered in the year 1938. There was stipulation in the said deed of settlement that after his death, his wife, Sakhi Sona Dasi will be the next sebait in respect of such deity and will manage the said debottor property in the interest of the deity. Thus, after the death of Gour Chandra Bag, Sakhi Sona Dasi became the Sebait. As per that deed of settlement, Sakhi Sona Dasi had the right to appoint the next sebait according to her choice. Sakhi Sona Dasi, before her death, executed and registered one "Sebait Niyog Patra" (Annexure P1 at page 12) on 12th May, 1987 and stipulated that after her death, one Bapi @ Sisir Kumar Bag, the son of another brother of Gour Chandra Bag, would be the next Sebait. She died and Sisir Kumar Bag, became the Sebait. Unfortunately for Bapi @ Sisir Kumar Bag, he died in an accident on 19 -04 -2004 and naturally without appointing any sebait, even though he had the power to appoint the next sebait."
(2.) The petitioners before this court are the widow and son of Sisir. The opposite party, Nemai Chandra Bag, is the son of Netai Chandra Bag, That Netai Chandra Bag was the full brother of Gour Chandra Bag. This Nemai Chandra Bag filed an application before the learned District Judge, South 24 - Parganas at Alipore praying for his appointment as Sebait under Sec. 34 of the Indian Trust Act, 1882 and the said petition was registered as Misc. Case No. 196 of 2004 (Annexure P3 at page 20). The said Misc. Case was transferred to the trial court and it was re -numbered as Misc. Case No. 11 of 2009.
(3.) The present petitioners appeared before that court in the year 2009 and started taking adjournment and ultimately that application so made was decided ex parte and Nemai Chandra Bag was appointed as the Sebait of the deity. One application was filed by the present petitioners on 16 -11 -2009 for recalling of the order dated 31 -07 -2009 but the said petition was dismissed as per the impugned order dated 14 -9 -2012. This order of dismissal is the impugned order before this court.;