Sudhir Chandra Verma, J. - (1.) BY the impugned order dated 7 -9 -1990 the Fifth Additional District Judge, Bijnor allowed the application of the landlord to bring on record the additional evidence at the appellate stage. The respondent No. 2 filed an application under Section 21(1)(a) of U.P. Act No. XIII of 1972 for the release of the disputed accommodation. In the pleadings it has been stated that the disputed accommodation is required to settle his son in business. The tenant set up a case that the landlord is a very rich man and has constructed big house in mohalla Nai Basti and has also constructed three shops and these shops are lying vacant. It has also been alleged that the landlord has constructed three shops in mohalla Chaudhariyan on the ground floor and on the first floor of these shops 'Balkhana' has been constructed. Two of the shops in mohalla Chaudhariyan are lying vacant which can be utilised by the landlord to establish his son, apart from another house in mohalla Bajdaran.
(2.) LEARNED Prescribed Authority after considering the material on record rejected the application of the landlord by order dated 18th November, 1989. The Prescribed authority held that the family settlement set up by the landlord had been created for the purpose of this case and in the family settlement the allegation that one of the sister has not accepted her share and has surrendered in favour of the brother of respondent No. 2, can not be accepted. The sister Smt. Ram Murti has not even cared to file her own affidavit nor there is any reliable evidence to establish the family partition. It was further held that the alleged family partition took place in the year 1982 but the name of respondent No. 2 remained to be recorded in the municipal record upto 1986 over the property situate in Mohalla Chaudhariyan. On the basis of the aforesaid findings the prescribed authority was of the view that the landlord has sufficient accommodation to settle his son and the need of the landlord is not bona fide and genuine. During the pendency of the appeal the respondent No. 2 filed the present application to adduce additional evidence. It was alleged that the oral family settlement dated 28 -1 -1982 terms of which were reduced in writing was filed before the prescribed authority. In the family settlement ancestral property of Durga Prasad was divided between respondent No. 2 and his brother Sri Surendra Kumar, Narendra Kumar and sister Smt. Ram Murti Devi and Smt. Santosh Kumari. Smt. Ram Murti Devi elder sister did not take her share in the property and she relinquished her share in favour of the other brothers and sister Smt. Santosh Kumari. In this context the affidavit of Smt. Ram Murti Devi is being brought on record to further clarify the family settlement and distribution of share between the family members. This application was vehemently opposed by the petitioner on the ground that the evidence can not be admitted at appellate stage to fill up the lacuna. It was alleged that the present evidence is not by way of clarification but the same is being filed to fill the lacuna in view of the observations made by the prescribed authority.
(3.) LEARNED Fifth Additional District Judge by the impugned order has allowed the application and it has been held that the respondent No. 2 has set up a case in pleadings about the family partition and reducing the terms of family settlement in writing for remembrance. The family settlement was already on record which establishes that the disputed property belong to other brothers. Thus it cannot be said that by the additional evidence the respondent No. 2 wanted to set up a new case or wanted to fill up the lacuna. According to the learned Judge Additional evidence was filed only to clarify the terms of the family settlement and that with separation of share Smt. Ram Murti Devi one of the sister had not accepted any share in the ancestral property. The effort of respondent No. 2 by filing additional evidence is to further clarify the position for arriving the court to a correct and just conclusion.;