- (1.) AN eviction suit was filed by the plaintiff -respondent nos. 1 and 2 originally against Sheikh Nizamuddin, tenant on the ground of personal necessity and arrears of rent. During the pendency of the suit original tenant namely Sheikh Nizamuddin expired and her widow Smt. Asghari Begum was substituted in the eviction suit. Eviction suit was decreed by the learned trial court. Feeling aggrieved by the eviction decree, Smt. Asghari Begum had preferred first appeal being Title Appeal No. 148 of 2009. During the pendency of the first appeal against the eviction decree, Asghari Begum also died. After the death of Asghari Begum, present appellants had moved substitution application claiming themselves to be sons and married daughters of Late Asghari Begum. Vide impugned order dated 11th May 2012, application seeking substitution was dismissed and appeal was also dismissed. Feeling aggrieved, the appellants have filed present appeal.
(2.) TENANT is defined under Section 2 (h) of the Bihar Building (Lease, Rent and Eviction) Control Act, 1982( 'Act', in short) which reads as under: "(h) 'Tenant' means any person by whom, or on whose account rent is payable for a building and includes - (i) a person continuing in possession after the termination of the tenancy in his favour; and (ii) a person who occupies a building as an employee of the landlord of such building either on payment of rent or otherwise; (iii) in the event of death of the person continuing in possession after the termination of his tenancy subject to the order of succession and condition specified, respectively, in Explanations I and II to this clause, such of the aforesaid person's - (a) spouse (b) son or unmarried daughter or where there are both, both of them, (c) parents, (d) daughter -in -law, being the widow of a predeceased son, as had been ordinarily residing in the premises with such person as a member or members of his family up to the date of his death, but does not include any person against whom an order or decree for eviction has been made. Explanation (I) - The order of succession in the event of the death of the person continuing in possession after the termination of his tenancy, shall be as follows: - (a) firstly, by his surviving spouse (b) secondly, his son or unmarried daughter or both if there is no surviving spouse, or if the surviving spouse did not ordinarily reside with the decreased person as a member of his family up to the date of his death. (c) thirdly - his parents, if there is no surviving spouse, son or unmarried daughter of the deceased person or if such surviving spouse, son or unmarried daughter or any of them; did not ordinarily reside in the premises as a member of the family of deceased person up to the date of his death; and (d) fourthly - his daughter -in -law, being the widow of his predeceased son, if there is no surviving spouse, son, unmarried daughter or parents of the deceased person, or any of them or if such surviving spouse, son, unmarried daughter or parents or any of them did not ordinarily reside in the premises as a member of the family of deceased person up to the date of his death. Explanation II - If the person, who acquires by succession, the right to continue in possession after the termination of tenancy, was not financially dependent on the deceased person on the date of his death, such sucessor shall acquire such right for a limited period of one year and on the expiry of the period or on his death whichever is earlier, the right of such successor to continue in possession after the termination of the tenancy shall become extinguished. Explanation III - For the removal of the doubts, it is hereby declared - (a) where due to Explanation II, the right of any successor to continue in possession after the termination of the tenancy, is extinguished, such extinguishment shall not affect the right of any other successor of the same category, the right to continue in possession after the termination of the tenancy shall not, on such extinguishment, pass on to any other successor specified in any lower category or categories, as the case may be. (b) the right of every successor referred in Explanation I, to continue in possession after the termination of tenancy shall be personal to him/her and shall not on the death of such successor devolve on any of his heirs." As per the definition of the tenant read with Explanation I and III of Section 2 (h) of the Act, on the death of the tenant firstly his spouse shall be deemed to be the tenant and in the absence of spouse, his son or unmarried daughter shall be deemed to be tenant. However, after the death of such spouse other legal heirs of the original tenants or spouse shall not be treated as tenant. Sub -clause (b) of the Explanation III is very important for the purpose of deciding present controversy. In view of Sub -clause (b) of Explanation III of Section 2 (h) of the Act, Asghari Begum was having only personal rights and her personal right of tenancy on her death shall not stand transferred or devolved to other legal heirs i.e., present appellants. In view of the above, I do not find any illegality in the order passed by the first Appellate Court. In view of the above discussion, no substantial question of law arises in the present appeal. Present appeal therefore, fails and is hereby dismissed.;