DINESH CHANDRA TRIVEDI Vs. ALOK NATH MISHRA

JUDGEMENT

(1.) The defendant-petitioners have filed this writ petition for issuing a writ in the nature of certiorari quashing the impugned judgment and order dated 24.11.1994 passed by the opposite party No. 4, the IInd Additional Civil Judge (Senior Division). Lucknow as Prescribed Authority under Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to be as 'Act') and the judgment and order dated 21.11.2002 passed in appeal under Section 22 of the Act by the opposite party No. 3 Additional District Judge (Court No. 6), Lucknow.

(2.) The opposite party No. 1 Alok Nath Mishra filed a release application under Section 21 (1) (a) of the Act against the petitioners as well as the mother of the petitioners late Smt. Vidya Devi Trivedi. The opposite party No. 1 set up his need on account of the fact that after the death of his father there had been a family partition and the house in tenancy of the petitioners has come in his share and the house in which he is living has come in the share of his mother and his brother Apurva Mishra and they are pressing hard for vacation of their portion. In the release application, the petitioner No. 1 was not impleaded as party as he was in the employment in the Railways. During those days, the opposite party No. 2 Suresh Chandra Trivedi was employed as he was residing with his father late Bhagwati Prasad Trivedi in the disputed premises. The premises was initially let out to late Bhagwati Prasad. It was alleged in the release application that Suresh Chandra Trivedi has acquired a house in Indira Nagar, Lucknow in vacant stale. The petitioners filed written statement denying the absolute ownership of the property in tenancy of the opposite parties, as there are other co-owners in the property. It was contended that the opposite party No. 1 Suresh Chandra Trivedi had separated from the family after acquisition of the house at Indira Nagar, Lucknow and he was not residing with the original tenant, his father late Bhagwati Prasad Trivedi. It was also contended that the tenancy right devolved upon the mother of the petitioners and the petitioner No. 2 as they were residing with late Bhagwati Prasad Trivedi at the time of his death. The Prescribed Authority allowed the application for release vide judgment Annexure No. 9. It was pointed out by the learned Prescribed Authority that it was admitted case of the opposite parties that late Bhagwati Prasad Trivedi was let out the premises and after his death opposite parties namely ; Smt. Vidya Devi Trivedi, Suresh Chandra Trivedi and Umesh Chandra Trivedi were the tenants. The learned Prescribed Authority framed three points for determination :

(3.) The learned Prescribed Authority has pointed out that Suresh Chandra Trivedi, the opposite party No. 1 did not file any separate written statement denying the fact that he was not residing in the house in dispute though he filed a Vakalatnama and an affidavit in support of his mother and brother namely ; Smt. Vidya Devi Trivedi alias Smt. Sarjoo Devi and Umesh Trivedi. He has also recorded a finding that opposite party No. 2 Suresh Chandra Trivedi was allotted a house in Indira Nagar, Lucknow and he had been residing in the house in dispute after the death of his father late Bhagwati Prasad Trivedi and he was not residing in the newly acquired house in Indira Nagar, Lucknow. He has further recorded a finding that there is no evidence that Suresh Chandra Trivedi has separated from the family in the life time of his father. After recording these findings, the learned Prescribed Authority has applied the Explanation (i) to Section 21 of Uttar Pradesh Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 which is as follows :