# Dinesh Chandra Defendant/ v. Bal Kishan Misra and others

- **Citation:** (2002) 2 ILRA 377
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2002-05-06
- **Case number:** Second Appeal No. 417 of 2002
- **Bench:** A.K. Yog
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-chandra-defendant-v-bal-kishan-misra-and-others-39876
- **Pages:** 4

## Headnote

Letting, Rent and Eviction) Act, 1972section 3, (U.P. Act No. 13 of 1972)- such
married daughters, who make no claim
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
378
and by their conduct abandoned their
right in the non residential building in
question are stopped in law, meaning
thereby a daughter who was married in
the life time of family and has not come
forward to make claim, cannot be said to
be a necessary party in absence of which
suit cannot be decreed. (Held in para
11).

Smt. Kalawati (the daughter of the
erstwhile tenant Smt. Raj Kumari) is not
a necessary party to the suit particularly
when
the
attending
circumstances
indicate that she has not come forward
to insist upon her tenancy rights, if any
and at all conferred in law.
Case Law Preferred:

## Text

2 All] Dinesh Chandra Vs. Bal Kishan Misra and others
377
dishonest person. In our opinion, on
account of the fraudulent act of the
petitioner, the relief's claimed by him in
the writ petition can not be granted and he
is not entitled to any compensation.

16. In order to get possession of the
acquired land, the authorities will have to
demolish more than 74 houses, which is
well-nigh impossible looking to the
ground realities. There should not be a
stalemate in the matter. The document of
possession - Kabja Parivartan Adhikar
Patra executed on 13.11.1997 merely
gave an authority to NOIDA to take
possession of the land. However, it is
fully established that actual physical
possession over the land has not been
taken either by the State or by the NOIDA
on account of the fact that about 74
houses are standing over the same which
have been constructed by the transfers of
the petitioner. So long as actual physical
possession has not been taken, it is open
to the State to withdraw from the
acquisition of any land in view of section
48 of the Act. The persons who have
raised constructions should not be left
under a constant fear and threat that their
houses can be demolished and physical
possession of the land may be taken.
Interest of justice requires that the
respondents should take a quick decision
whether they would pursue with the
acquisition proceedings and would take
possession of the land or they would like
to withdraw from acquisition of the land
by
taking
appropriate
action
in
accordance with section 48 of the Act.
The respondents are accordingly directed
to take a final decision expeditiously
preferably within 4 months in the matter
whether they would still proceed with the
acquisition
proceedings
and
take
possession of the land by dispossessing
those who had raised constructions over
the plot in dispute or they would
withdraw from the acquisition of the land.
If a decision is taken to withdraw from
acquisition of the land, appropriate steps
shall be taken by the government to issue
a notification in that regard. If, however
the respondents decide not to withdraw
from the acquisition and take the
acquisition proceedings to its logical end,
the award for the acquired land under
section 11 of the Act shall be made
expeditiously and in accordance with law.
Without being influenced in any manner
by the interim order passed by this Court
on 7.10.1998. The Collector/Special Land
Acquisition Officer would also adjudicate
the question as to who is entitled to get
the compensation.

17. Subject to the directions made
above, the writ petition is dismissed.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 06.5.2002

BEFORE
THE HON'BLE A.K. YOG, J.

Second Appeal No. 417 of 2002

Dinesh Chandra...Defendant/Appellant
Versus
Bal Kishan Misra and others
 ...Defendants/Proforma Respondents

Counsel for the Appellant:
Sri Dhruva Narayana
Sri Bala Krishna Narayana

Counsel for the Respondents:

U.P.
Urban
Building
(Regulation
of
Letting, Rent and Eviction) Act, 1972section 3, (U.P. Act No. 13 of 1972)- such
married daughters, who make no claim
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
378
and by their conduct abandoned their
right in the non residential building in
question are stopped in law, meaning
thereby a daughter who was married in
the life time of family and has not come
forward to make claim, cannot be said to
be a necessary party in absence of which
suit cannot be decreed. (Held in para
11).

Smt. Kalawati (the daughter of the
erstwhile tenant Smt. Raj Kumari) is not
a necessary party to the suit particularly
when
the
attending
circumstances
indicate that she has not come forward
to insist upon her tenancy rights, if any
and at all conferred in law.
Case Law Preferred:

(Delivered by Hon'ble A.K. Yog, J.)

1. This second appeal arises out of
concurrent judgment and decree dated
16.2.1993 passed by Munsif Magistrate,
Kannauj, District Farrukhabad in Original
Suit No. 421 of 1982 (Bal Kishan Versus
Dinesh Chandra) whereby the Trail Court
dismissed the suit and appellate Court,
vide judgment and decree dated February
27, 2002 affirmed the judgment and
decree passed by the trial Court.

2. Heard Sri Dhruv Narain,
Advocate, on behalf of the defendant
appellant and perused the record.

3. Plaintiff filed suit against the
defendants
Dinesh
Chand,
Son
of
Chimman Lal and Chimman Lal Son of
Laxman Prasad (both being son and father
respectively) seeking decree for ejectment
and recovery of mesne profit/damages
w.e.f. June, 1982 on the ground that
defendant unlawfully, without authority,
unauthorisedly and without the consent of
the owner/landlord (the plaintiff) took
possession and failed to vacate in spite of
registered notice being sent.

4. The defendants, however, on the
other hand, in their written statement
alleged that they were tenants since the
time of the father of the plaintiff Suraj
Prasad (grand father of the plaintiff
Balkrishna). Trial Court framed issue and
while suit was pending, an objection was
taken regarding non-impleadment of
Chimman Lal, a necessary party to the
suit.

5. The plaintiff, however, impleaded
Chimman Lal as defendant and removed
the defect.

6. Perusal of the judgment and
decree passed by the two courts below
indicate, as also fairly conceded by the
learned counsel for the appellant Sri
Dhruv Narain, Advocate, that neither
issue was framed nor pleading was raised
regarding maintainability of the suit in
absence of non impleadment of Kalawati
(daughter of erstwhile tenant Smt. Raj
Kumari wife of Late Maiku Lal the
erstwhile tenant).

7. It has also come on record of the
case and not disputed before the Court
below that Smt. Kalawati was married
prior to the death of her mother-Smt. Raj
Kumari on June 3, 1982. It is evident that
original suit is also of the year 1982
which shows that said suit was filed
immediately after some time after the
death
of
Smt.
Raj
Kumari.
This
establishes that the defendants did occupy
the shop some where between the death of
Smt. Raj Kumari (i.e. on 3.6.1982) and
the date of the issuance of registered
notice
(i.e.
dated
17.7.1982).
This
confirms that suit was filed by the
plaintiff expeditiously as soon as the
cause of action had arisen.
2 All] Dinesh Chandra Vs. Bal Kishan Misra and others
379

8. Before this Court the only
submission for maintaining second appeal
is that suit could not be decreed and
judgment and decrees passed by the two
courts below cannot be sustained in as
much
as
the
suit
suffered
from
fundamental defect of non impleadment
of Smt. Kalawati who happened to be the
'heir of the Tenant (Smt. Raj Kumari) as
defined under Section 3 of the U.P. Urban
Buildings (Regulation of Letting, Rent
and Eviction) Act, 1972, U.P. Act No.
XIII of 1972 (for short called 'the Act').
For ready reference, Section 3A(2) of the
Act, which deals with non residential
building, is reproduced:-

"Definition- 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) ...........

(2) in the case of non-residential
building, his heirs;

Explanation---

......................................"

9. This Court in the cases of Smt.
Anju Sharma versus Suresh Chand Jain
and others-1993 (1) Allahabad Rent Cases
291-Pr.13 and Abdul Sattar versus VI
Additional District Judge, Allahabad and
others-1994 (1) Allahabad Rent Cases.
117 has held that under Section 3A (2) of
the Act such married daughters, who
make no claim and by their conduct
abandoned
their
right
in
the
non
residential building in question are
stopped in law, meaning thereby a
daughter who was married in the life time
of family and have not come forward to
make claim cannot be said to be a
necessary party in absence of which suit
cannot be decreed.

10. There is no plea in the written
statement nor raised before the courts
below. The concurrent judgments and
decrees passed by the two courts below
cannot be assailed on this new ground for
the first time before this Court in Second
Appeal. The 'Defendant-Appellant' cannot
be permitted to challenge the said
judgments and decrees by taking the plea
for the first time, particularly when such a
plea would require adjudication of facts
after parties have lead evidence.

11. In my opinion Smt. Kalawati
(the daughter of the erstwhile tenant Smt.
Raj Kumari) is not a necessary party to
the suit particularly when the attending
circumstances indicate that she has not
come forward to insist upon her tenancy
rights, if any and at all conferred in law.

12. The concurrent finding of the
two courts below on the issue of
unauthorized and unlawful possession of
the shop by the Defendants, I find no
good ground to interfere with the same
and no legal ground, much less substantial
question of law, worth consideration in
the second appeal by this Court.

13. Second appeal is dismissed in
limine.

There shall be no order as to costs.
---------
INDIAN LAW REPORTS ALLAHABAD SERIES [2002
380
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.5.2002

BEFORE
THE HON'BLE S.K. SINGH, J.

Writ Petition No. 47893 of 2000

Smt. Indu Tripathi

...Petitioner
Versus
The Director of Education (Madhyamic),
Allahabad and others
 ...Respondents

Counsel for the Petitioner:
Shri Radha Kant Ojha
Shri Dinesh Chandra Tripathi

Counsel for the Respondents:
Shri Manoj Kumar Pandey
Shri Ravi Kant
S.C.

Constitution
of
India-Article
226-a
selected candidate cannot be permitted
to be deprived of his right on account of
the fact- that the employer sits over the
matter
and
permits
the
time
as
prescribed for exhausting panel to run
over. For the fault of the committee/
Board in taking erroneous decision, if a
post has been taken over by some body,
even then the right of a candidate so
validly found to be entitled for that post,
cannot be denied. (Held in para 14).

The
action
on
the
part
of
the
management for denying the petitioner's
right is neither fair nor justified nor
bonafide nor legally acceptable and
therefore, decision of respondent no.4
dated 10.9.2000 (annexure 6 to the writ
petition) as impugned in this petition
deserves to be quashed.
Case Law Preferred:
1999 SCC Vol.6
AIR 1996 SC 1145
1997 JT Vol.(3) page 736

(Delivered by Hon'ble S.K. Singh, J.)

1. By means of this writ petition, the
petitioner has prayed for issuance of a
writ in the nature of certiorari quashing
the order dated 10.9.2000 (annexure 6 to
the writ petition) passed by respondent
no.4. A further prayer has been made for a
direction to the respondents to permit the
petitioner to work as Assistant Teachers
and to pay her salary.

2. There is an intermediate college
known as Rama Devi Balika Inter
College, Allahabad (hereinafter referred
to as the College). There happened three
vacancies of teachers in BTC grade in
respect to which the management held
selection
in
accordance
with
the
provisions of Education Act. For all these
posts, different sets of panel of two
candidates each were prepared. The
dispute survives only in respect to the
post which is being claimed by the
petitioner which is general category post
for which, admittedly, Smt. Neelam
Kapoor was placed at Sl. No. 1 and the
petitioner was placed at Sl. No.2. The
petitioner claims that Smt. Neelam
Kapoor was not eligible and qualified and
therefore, her name in the panel at Sl.
No.1 was clearly illegal and her selection
as such was void and the petitioner being
next, on top was entitled to be given
appointment.
It
appears
that
the
management recommended the name of
Km. Durga Singh who was at Sl.No.2 in
the panel prepared for backward class
candidates to be appointed in place of
Smt.
Neelam
Kapoor
which
was
challenged by the present writ petitioner
in writ petition no.18253 of 1998. This
Court on 22.5.1998 disposed of the writ
petition with the direction to the District
Inspector of Schools to decide the