SUDHIR NARAIN, J. - (1.) THIS writ peti­tion is directed against the order passed by respondent No. 1 allowing the appeal and dismissing the release application filed by the landlord- respondent.
(2.) THE petitioner is landlord of the shop in question situate at Bajaja Line, Ram Nagar of which respondent No. 2 is tenant. The petitioner filed an application for release of the disputed shop under Section 21(l)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Evic­tion) Act, 1972 (in short 'the Act') with the allegations that there was a family parti­tion under which the disputed shop came to his share. He was engaged in partner­ship business of selling Sarees with Vijai Kumar, one of his brothers, in the shop which is owned by his brother but after he got married the relationship between the two, became strained and now he wants to start his own independent Saree business in the disputed shop. It was stated that the tenant-respondent owns a shop at Kashipur and he can shift his business there. The application was contested by respondent No. 2. It was stated that there was no partition in the family and every member of the family is living jointly and the petitioner is carrying on joint family business. The prescribed authority held that there was genuine partition between the parties and the partition was effected by a decree of Civil Court. The petitioner does not have any vacant shop of his own to carry on business. His need is bonafide. It was further found that respondent No. 2 has his own shop in Kashipur and in case the application of the petitioner is rejected he will suffer a greater hardship. The ap­plication was allowed on 14-12-1982 on these findings. Respondent No. 2 filed ap­peal and respondent No. 1 allowed the appeal on 7-5-1983, reversing the findings of the prescribed authority. The petitioner has challenged this order in the present writ petition. I have heard Sri Manish Goel, learned Counsel for the petitioner and Sri Rajesh Tandon, learned Counsel for the contesting respondent.
(3.) RESPONDENT No. 1 rejected the claim of the petitioner mainly on the find­ing that the partition decree was collusive. The Court cannot hold a decree as col­lusive or sham transaction on the basis of its pre-conceived notions particularly when there is a partition decree between the co-sharers. The parties enter into com­promise in a suit and if the decree is passed on the basis of such compromise between the parties, it cannot be taken that it is a collusive or the compromise was entered into between the parties to defeat the rights of any third person. The decree of the Civil Court is to be accepted unless it is set aside. In Khem Chand v. IVAdditional District Judge, Bulandshahr and others, 1989 (2) ARC 344, wherein it was urged on behalf of the tenant that the partition decree was collusive, the Court repelled the contention and held that as long as the decree passed by the Civil Court is not set aside, the prescribed authority has no jurisdiction to record a finding that the compromise decree was collusive. It was observed that: “The main contention of the learned Counsel for the petitioner was that the partition decree is a collusive one and it should have been ignored by the authorities below. They have committed a mistake in relying upon the same. His case further was that this compromise was arrived at between the landlord-respondent No. 3 and his father in order to evict the petitioner from the shop in dispute. The contention is misconceived inasmuch as so long the decree passed by the Civil Court in suit No. 107 of 1983 is not set aside, the Prescribed Authority has no jurisdiction to record a finding that the com­promise decree was collusive. The validity of the decree cannot be challenged in collateral proceedings.” ;