S.K.MOOKERJI,J. - (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. Learned counsel for the petitioner has urged that the petitioner was not given opportunity to produce fresh evidence. This argument of the petitioner is devoid of merit. I have already pointed out that the appellate Court has clearly held in its judgment that in spite of opportunity none of the parties adduced any fresh evidence. There is neither any application on record to show that the petitioner ever prayed before the appellate Court for producing/filing any evidence. It is also the not case of the petitioner that she has made any application to this effect which was either rejected or on which no orders were passed. This plea is definitely an afterthought and has no legs to stand. Learned counsel for the petitioner has next argued that the petitioner was living with her deceased father at the time of his death. From a reading of the judgment of the appellate Court it is clear that there is categorical finding of fact recorded against the petitioner that she was not living with her father, Bachcha (Bachan ?) Lal, at the time of his death. This finding of fact cannot be disturbed in the writ petition. The finding of fact recorded by the appellate Court is neither perverse nor against the evidence on record nor suffers from any manifest error of law. It is rather strange that at a very late stage the petitioner had tried to develop her case that she has been disowned by the husband, therefore, she was living with her father. This plea of the petitioner has been rightly rejected by the appellate Court. The above plea is obviously false. The substitution application moved on behalf of Smt. Asha Devi has been supported by an affidavit of her husband, Panna Lal. In the affidavit, in support of the substitution application, the plea was taken that Smt. Asha Devi was of unsound mind. After going through the judgment of the appellate Court, I fully agree with the finding recorded by the Courts below.
(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 : "In this Act, unless the context otherwise requires a "tenant" in relation to a building means a person by whom its rent is payable and on the tenant's death - (1) in the case of a residential buildings, such only of his heirs as normally resided with him in the building, at the time of his death." From a reading of the above definition of tenant it is clear that a tenant in relation to a building means a person by whom its rent is payable and on tenant's death, in case of a residential building, such only of his heirs as normally resided with him in the building at the time of his death. In the present case, Bachan Lal was the tenant and on his death all the heirs of Bachan Lal, in respect of residential building in his tenancy could not be said to have become tenants, except those who normally resided with him in the building at the time of his death. Thus, Smt. Asha Devi may be his heir but she was not normally residing with him in the building at the time of his death and, therefore Smt. Asha Devi could not have inherited the tenancy rights of the deceased Bachan Lal. It is only such heirs of deceased as normally resided with him in the building at the time of his death could only inherit the tenancy rights of Bachan Lal. None of the heirs was residing with Bachan Lal at the time of his death as such there was no question of inheriting his tenancy right by any of his two daughters. Even if a married daughter, who normally resides elsewhere with her husband is present in the accommodation in the tenancy of her father at the time of the death of her father will not be entitled in law to any rights to inherit the tenancy of her deceased father. Thus a casual or chance presence or temporary stay of a married daughter at the time of death of the father is not all relevant for inheriting the tenancy rights. She should have normally resided with her deceased father in the building at the time of his death for the purpose of claiming the tenancy rights by inheritance. The word "normally resided" in the above section is important. It means that the heir/heirs, who normally resided with the deceased father in the building at the time of his death with exclusion of other heirs residing elsewhere shall only inherit the tenancy rights of the deceased. The words "normally resided" in the context of the definition of "tenant" shall be understood as "ordinarily and regularly resided" and does not refer to casual presence of any heir in the house at the time of the death or ailment of the deceased tenant. The legal aspect discussed above shall be confined to the facts of the present writ petition. In view of the finding recorded by the appellate Court and the facts and circumstances narrated above the petitioner cannot be said to have inherited any tenancy right from the deceased father. ;