- (1.) B. K. Rathi, J. The petitioner moved an application under Section 21 (l) (a) of U. P. Act No. XIII of 1972 (hereinafter called the Act) for the release of the premises in possession of respon dent Nos. 2 to 4, Annexure-1 to the peti tion. The application for release was al lowed by the Prescribed Authority by order dated 19-11- 1997, Annexure-12 to the petition. Aggrieved by that order, the respondent Nos. 2 to 4 filed Rent Appeal No. 10 of 1997 under Section 22 of the Act. The rent appeal has been allowed on 27-4-1998 by order, Annexure-13 to the peti tion. The petitioner, therefore, has in voked extra-ordinary jurisdiction of this Court under Article 226 of the Constitu tion of India.
(2.) I have heard Sri. R. U. Ansari, learned Counsel for the petitioner, Respondent Nos. 2 to 4 did not appear and, therefore, they could no t be heard. The premises in dispute known as Zahur Building situated in Golghar, Gorakhpur City. Originally, Zahurul Hasan was the owner and landlord of the same. He died leaving several sons and daughters. The petitioner is his daughter. It is alleged that even after the marriage, she was living in the disputed house; that there was a private partition. The portion in which the petitioner was living was al lotted to the share of Ashfaq Ahmad; that Ashfaq Ahmad brother of the petitioner permitted her to live in one room of the house as licensee till her share is vacated; that the portion of the house in the tenancy of the respondent Nos. 2 to 4 came to the share of the petitioner; that the petitioner is in need of the disputed premises. It is further alleged that the balance of hardship is also in favour of the petitioner and that the respondent Nos. 2 to 4 are well placed in the life and can get another house. After considering the arguments, I am of the view that the Prescribed Authority allowed the application for release without properly appreciating the facts. Release application moved by the petitioner is Annexure-1 to the petition. It is alleged that the portion in which respon dent Nos. 2 to 4 are tenants fell to the share of the petitioner; that a private partition took place and its memo has been filed which is Annexure-4 to the petition. This memo is on a plain paper and is not admis sible in evidence. Therefore, this private partition cannot be accepted. It appears that this paper has been prepared in col lusion with other co-sharers who are fami ly members of the petitioner to create an artificial need to oust the respondents. No reason has been mentioned as to why the petitioner took the portion which is in the occupation of the tenants. Even if, for the sake of arguments it is admitted that the memo of partition, Annexure-4 to the petition is admissible in evidence, it is a collusive document to oust the respon dents.
(3.) THE most interesting fact is that the petitioner has alleged that she became the owner of the house by private partition, Annexure-4 to the petition, the respon dents were old tenants of the house from the life time of the father of the petitioner. It has no where been alleged in the petition as to how after the partition she became the landlady of the respondent Nos. 2 to 4. THEy have neither accepted this private partition nor recognised the petitioner as their landlady. THEre is no attornment by the respondents in favour of the petitioner. THEy have denied that the petitioner is the landlady and they are tenants of the petitioner. In the absence of any pleading in the application under Section 21 (l) (a) of UP. Act No. XIII of 1972, it cannot be accepted that the respondents are tenants of the petitioner. THE application of the petitioner was not maintainable. The entire facts regarding partition appears to have been concocted to create an artificial need to oust the respondent Nos. 2 to 4. In the circumstances, the peti tion for release was rightly rejected by the appellate Court.;