BECHAN Vs. JUGAL KISHORE

JUDGEMENT

(1.) C. I. Verma, J. This revision has been filed against I he order dated 22-12-1995 passed by the learned Additional Commissioner Gorakhpur Division whereby he has allowed the substitution applications.

(2.) BRIEFLY staled the facts of the case are that one Chhabbu and others filed a suit under Section 229-B olf UPZA and LR Act against the defendants, Barsati and others, on the grounds that the plaintiffs are in possession over the land in dispute detailed at the foot of the plaint ; that after the abolition of zamindari they became sirdar of the land in suit and since 11-6- 26 they are solely in possession over the same and hence prayed that the plaintiffs be declared as sirdar in possessions over the disputed land. Notices were issued. The defendants filed objection denying Ihe plainl allegations and prayed that the suil be dismissed. The learned trial Court after completing the requisite trial decreed the suil of Ihe plaintiffs by its order dated 17-7-1976. Aggrieved by that order ap peals were preferred before the Commissioner. During the pendency of appeals substitution applications were filed. The learned Additional Commissioner by his order dated 22-12-1995 allowed the sub stitution applications. Feeling aggrieved by that order the instant revision has been filed before this Court.

(3.) I have considered the contentions raised by the learned Counsel for the par ties and' have gone through the relevant papers on file. From perusal of file I find that there is considerable force in the con tentions raised by the learned Counsel for the revisionist. The date of death of Barsati was not specified and hence it could not be ascertained whether the application was moved with in time or not. The point whether Bechu s/o Jhagatu was the legal heir and representative of Barsati or his daughter Lakhpatti was his heir should have been considered before passing any order on the substitution application; the learned Additional Commissioner failed to do so. The substitution application in respect of Basdeo was admittedly moved after the prescribed period of limitation ; no application for condonation of delay under Section 5 of Limitation Act or any affidavit in support there of has been field. The lower Court was not justified in con doning the delay on its own accord because no sufficient cause had been shown for condonation of delay in filing the substitu tion applications. As a matter of fact, the appeal had abated for non substitution of heirs of Basdeo deceased with in time and there existed no sufficient reason for set ting aside the automatic abatement. The orders passed by the learned Additional Commissioner were bad in law and deserve to be set aside. In view of the above the revision having force is here by allowed, the im pugned orders dated 22-12- 1995 passed by the lower Court are set aside and the first appeal is abated for want of substitution of heirs of deceased. Revision allowed. .