ASHA DEVI Vs. VTH ADDITIONAL DISTRICT JUDGE, GORAKHPUR

JUDGEMENT

(1.) I have heard learned counsel for the petitioner.

(2.) THE petitioner, Smt. Asha Devi, is the daughter of one Bachan Lal, Smt. Asha Devi is married. Bachan Lal was the tenant in the disputed house. Mahmudul Haq respondent No. 2, is the landlord. It appears that an application was filed before the Prescribed Authority under Section 21 of Act No. XIII of 1972 by the landlord, respondent No. 2, against the tenant Bachan Lal. The Prescribed Authority allowed the application of the landlord. Aggrieved by the order of the Prescribed Authority Bachan Lal filed Misc. Appeal No. 54 of 1980. During the pendency of the appeal Bachan Lal expired and, therefore, the petitioner, Smt. Asha Devi, moved an application for substituting her in place of Bachcha (Bachan ?) Lal to prosecute the appeal. This application was supported by an affidavit filed by Panna Lal, husband and guardian of the petitioner, Smt. Asha Devi. In this application it was mentioned that Bachcha (Bachan ?) Lal had died on 18.6.1986. It is also averred in the affidavit that at the time of the death of Bachcha (Bachan ?) Lal his daughter Smt. Asha Devi was residing in the accommodation in question as such, Smt. Asha Devi had inherited tenancy rights of the deceased Bachcha (Bachan ?) Lal. In the affidavit it is also stated that Smt. Asha Devi was of unsound mind and was looked after by her husband Panna Lal. In this application some explanation was also given for the delay in making the application for substitution and prayer for condonation of delay. A counter-affidavit was also filed and in reply rejoinder affidavit was filed by one Manmohan Gupta. The appellate Court on considering the materials on record, by its order dated 1.12.1988 rejected the substitution application and abated the appeal. Thereafter, Smt. Asha Devi filed writ Petition No. 23903 of 1988, which came up before Hon'ble Mr. Justice R.B. Mehrotra, who by his order dated 10.9.19(sic)0 disposed of the writ petition and held that delay in making substation application was condoned and remanded the case back to the appellate Court to decide the matter again. In substance Hon'ble Mr. Justice R.B. Mehrotra directed that rejoinder affidavit may be taken into consideration along with other evidence for reaching a definite conclusion in respect of the claim that the petitioner was entitled in law to be substituted as tenant in place of her deceased father. The matter again came up before Vth Additional District Judge, Gorakhpur for adjudication. After hearing the parties the appellate Court in paragraph 4 of the impugned judgment dated 5.4.1991 has stated that the parties did not produce any fresh evidence. The appellate Court also held that at the time of death of Bachcha (Bachan ?) Lal, he had two daughters, namely, Smt. Asha Devi and Smt. Sudha Devi. It is also stated that Smt. Sudha Devi was living at Faizabad with her husband and she had not made any application either for substitution or for becoming a party to the present case after the death of her father Bachcha (Bachan ?) Lal. After considering the entire evidence including rejoinder affidavit of Manmohan Gupta the appellate Court came to a definite conclusion that it was not proved that Smt. Asha Devi was living with her father, Bachcha (Bachan ?) Lal at the time of his death in the accommodation in question. In this view of the matter the appellate Court came to the conclusion that under Section 3(a)(i) of Act No. XIII of 1972 Smt. Asha Devi has no right to claim herself as a tenant for continuing the appeal in question filed by her father, Bachcha (Bachan ?) Lal, after his death. The appellate Court has rejected the plea of the petitioner that she was disowned by her husband. The appellate Court also pointed out that the petitioner has not produced Ration Card, Voters list and papers from Nagar Mahapalika prepared for the assessment of the building in question.

(3.) IT is necessary to point out that once the appellate Court has recorded a finding that Smt. Asha Devi was not living with her deceased father, Bachan Lal at the time of his death, it becomes imperative to hold that she cannot claim to have inherited the tenancy rights of her father in view of Section 3(a)(1) of Act No. XIII of 1972, the relevant portion of which is extracted below :