JUDGMENT A.K. Yog, J.
1. The 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 v. Dinesh Chandra, whereby the trial 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 Dhruva Narain, advocate, on behalf of the defendant appellant and perused the record.
3. Plaintiff filed suit against the defendants Dinesh Chandra, 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 Dhruva Narain, advocate that neither issue was framed nor pleading was raised regarding maintainability of the suit in absence of non-impleadmenl 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 Sml. 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.
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. Rajkumari) 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 3 (a) (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 :
9. This Court in the cases of Smt, Anju Sharma v. Suresh Chand Jain and Ors., 1993 (1) AWC 123 : 1993 (DARC 291 para 13 and Abdal Sattar v. Vlth Additional District Judge, Allahabad and Ors.. 1994 (1) AWC 249 : 1994 (1) ARC 117, has held that under Section 3 (a) (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 lifetime 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 unauthorised 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.
14. There shall be no order as to costs.