G.P. Mathur, J. - (1.) THE petitioner has challenged the order dated 18 -7 -1988 passed by the Rent Control and Eviction Officer, Jhansi by which he has declared premises No. 144 Mohalla Chandhariana as vacant. Parties have exchanged affidavits and therefore, the writ petition is being disposed of finally at the admission stage. One Nand Kishore Tiwari was tenant of house No. 144 Moh. Chaudhariana of which Radhey Shyam, respondent No. 2, is the owner -landlord. Nand Kishore Tiwari died in 1984 leaving behind two daughters, namely Smt. Sharda Devi and the petitioner Smt. Kamla Devi. His wife had predeceased him in June, 1983, and he had no son. The landlord moved a release application under Section 16(1)(b) of U.P. Act No. 13 of 1972 on the ground that after the death of Nand Kishore the premises had fallen vacant. This application was opposed by the petitioner Smt. Kamla Devi on the ground that she being the daughter of the erstwhile tenant would be deemed to be the tenant of the premises in dispute and there was no vacancy. The Rent Control and Eviction Officer held that as she was not normally residing with Nand Kishore Tiwari at the time of his death she was not "tenant" of the premises as defined in Section 3(a)(1) of the Act and, therefore, the premises had fallen vacant.
(2.) LEARNED counsel for the petitioner has contended that the finding of the Rent Control and Eviction Officer that the petitioner was not normally residing with Nand Kishore is perverse and is liable to be set aside. Learned counsel for respondent No. 2 has, however, submitted that there is ample evidence on record to show that the petitioner was not residing with her father at the time of his death. The material on record shows that three persons, Mohan Lal, Radhey Shyam Agarwal and Govind Das, had filed affidavits stating that the petitioner was normally not residing with her father Nand Kishore at the time of his death. Respondent No. 2 had also filed copy of the voters list and copy of the judgment of additional District Judge dated 15 -3 -1985. Which showed that the petitioner was living separately along with her husband Babu Lal Gangotia in house No. 145 Moh. Chaudhariana, The Rent Control Inspector had also Inspected the premises and at that time some witnesses had given statement that the petitioner was residing along with her husband in the house belonging to her son Ashoka Kumar bearing house No. 145 Moh. Chaudhariana. The voters list Shows that in the disputed house No. 144 Moh. Chaudharian only Nand Kishore and his wife were shown to be residing. In the Assessment list made by the Municipal Board for the period 1975 to 1985 Ashoka Kumar Gangotia was shown to be the owner of house No. 145 Chandbariana. Another important document on record is the judgment given by the 2nd Additional District Judge on 16 -3 -1985 in Rent Control Appeal No. 53 of 1982. It appears that the landlord Radhey Shyam had also filed a release application under Section 21(1)(a) of the Act against Nand Kishore which was dismissed by the Prescribed Authority on 20 -9 -1982. Against this order an appeal was filed by the landlord and during the pendency of the appeal Nand Kishore died. After his death a substitution application was moved for bringing on record his two daughters namely Smt. Kamla Devi (Petitioner) and Smt. Sharda Devi. The learned Additional District Judge held that the daughters of Nand Kishore were not residing with him at the time of his death and, therefore, they could not be deemed to be tenant of the promises in dispute. He accordingly held that there was no tenant in the premises in dispute and dismissed the appeal filed by the landlord on the ground that proceedings under Section 21 of the Act cannot continue in absence of there being a tenant in the premises in dispute. Learned counsel for the petitioner has submitted that the Rent Control and Eviction Officer has not considered the evidence adduced by her. In this connection he referred to copy of the plaint of Radhey Shyam v. Nand Kishore, JSCC Suit No. 490 of 1 copy of affidavit of the petitioner Smt. Kamla Devi and copy of the application moved by the landlord on 20 -11 -1978 in the suit filed by him. In the plaint of suit No. 490 of 1978 it was stated that Nand Kishore had admitted B.N. Tripathi and Babu Lal as sub -tenants. This statement does not lead to an inference that the petitioner was residing along with Nand Kishore at the time of his death. In the affidavit filed by the petitioner no doubt she has stated that she was residing along with her father but she being a highly interested person her affidavit does not carry any weight. In the application moved by Radhey Shyam, respondent No. 2 in the suit filed by him he did not admit that the petitioner was residing along with her father. It is, therefore, clear that the evidence adduced by the petitioner does not show that she was residing along with Nand Kishore at the time of his death.
(3.) IN my opinion the Rent Control and Eviction Officer has properly considered the evidence on record and has correctly held that the petitioner was not residing along with her father Nand Kishore at the time of his death and, therefore, she would not be a tenant and a vacancy would occur.;