- (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. I have heard the learned Counsel for the parties and have gone through the impugned orders passed by the Courts below. The Counsel for the revisionist submitted that in respect of the death of the appellant, Barsati, no exact date was mentioned the application was incom plete and was not maintainable. The ap plication seeking substitution of heirs of deceased Basdeo was filed after the prescribed period of limitation and no application under Section 5 of Indian Limita tion Act for condonation of delay or any affidavi t was filed in support there of. It was further submitted that Bechu s/o Jhagatu had been allowed to be substituted in place of deceased Barsati while he was not the heir of Barsati but the real heir and legal representative of Barsati was Smt. Lakhpatti. He further submitted that in the circumstances of the case the heirs and legal representative of the deceased had not been brought on record of first appeal and the appeal stood abated and there was no justification for setting aside the auto matic abaiement and as such the revision be allowed and the impugned orders be set aside and first appeal be dismissed for want of substitulion. In reply, it was submitted that the learned Additional Commissioner had ap preciated the facts and circumstances of the instant case and had rightly condoned the delay in filing the substitution applica tion in respect of Basdeo. It was further submitted that the application for sub stitution in respect of Barsati was with in time and mere the fact that the date of death had not been given would not be very material. It was further submitted that there was no illegality or irregularity in the orders passed by the learned Additional Commissioner and hence, there revision bedismissed.
(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. .;