- (1.) Heard learned Counsel for the parties and perused the record. This petition has been filed challenging the validity and correctness of the judgment and order dated 27.11.1998, passed by the Rent Control and Eviction Officer, Ghaziabad.
(2.) The order impugned is challenged on the ground that the Rent Control and Eviction Officer, Ghaziabad has wrongly placed reliance on a sale-deed dated 10.4.1989 in which address of Vinod Kumar Saxena, respondent No. 3 was shown as 581, Kirtanwali Gali, Bazaria, Ghaziabad for holding that he was not living separately from his father in the year 1985. He has stated that this finding of the Rent Control and Eviction Officer for not declaring the vacancy in the house in dispute is against the evidence on the record, is perverse, illegal and not sustainable.
(3.) Learned Counsel for the petitioners has submitted that Vinod Kumar Saxena was a member of the family of Shiv Lal and inherited the accommodation as tenant but acquisition of a vacant house by him is not to be taken into consideration for the purpose of section 12 of the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as 'the Act'). He has placed reliance upon the case of Mohd. Azeem v. District fudge Aligarh and others, 1985 11 AllLR 350. In the aforesaid case the Apex Court was considered the provisions of sections 12(3), 3(a)(1) and 3(g) of the Act as to when deemed vacancy would arises. The facts of that case were, the original tenant, his widow and three sons were living in the tenanted house upon whom the tenancy devolved upon death of the original tenant. One of the sons build their own house in the same city and shifted in it. But the other two sons, widow and daughter did not shift. The Court, in the circumstances held that the other two sons, widow and daughter will remain to be the tenant in the same house and shifting of one of the sons in the acquired accommodation will not attract the deeming provisions of section 12(3) of the Act.;