M. P. Mehrotra, J. - (1.) BOTH these petitions are connected and can be disposed of by one common judgment. The petitions have arisen out of an application for release under Sec. 21 (1) (a) of the U. P. Act No. 13 of 1972, which was given by the landlady Smt. Shanti Shah against her tenant Sri B. N. Tiwari.
(2.) THE facts, in brief, are these : Smt. Shanti Shah is the landlady and Sri B. N. Tewari is the tenant in the accommodation in question. THE accommodation is suite no. 5 on the first floor of a building known as 'Shanti Niketan', situated in Malli Tal in Naini Tal. This rented accommodation consists of four big rooms, two lavatories and two rooms in the out-houses. THE landlady applied for release of the said accommodation under Sec. 21 (1) (a) of the said Act. A true copy of the said application is annexure no. 'C' to Civil Misc. Writ petition no. 4819 of 1980, i. e. the tenant's writ petition. As will be evident from the prayer set out in the said application, the landlady expressed her willingness to share the accommodation in question with the tenant's son who, according to her, alone was in occupation of the accommodation in dispute. THE stand of the landlady throughout the release application and even in this Court has been that she would be satisfied if two rooms and the lavatories on the first floor were released to her out of the four rooms and lavatories on the first floor of the building in question. Of course, she also in addition sought the release of a portion of the out-house which was sought to be used as kitchen. THE tenant contested the said release application. THE Prescribed Authority by a detailed order dated 28-8-1979 allowed the application for release in part. THE details of the released accommodation are given in the operative part of the said order with reference to a map which was made a part of the said order. In broad terms, the Prescribed Authority released one room out of the four rooms on the first floor, lavatory and half portion of the out-house in the tenancy of Sri Tewari. Both sides felt aggrieved and went up in cross-appeals before the appellate court. THE appellate court dismissed both the appeals by a common judgment, dated May 8, 1980, a true copy of which is on record as Annexure 'A' to the petition of Sri B. N. Tewari, the tenant. A certified copy of the order of the Prescribed Authority is annexure 'B' to the said petition. Feeling aggrieved, both sides have now come up in the instant cross writ petitions and in support and in opposition of the two writ petitions, I have heard Sri Kameshwar Prasad, learned counsel for the tenant and Sri Tandon in support of the petition of the landlady. The authorities below have concurrently held that the need of the landlady was bona fide and on a comparison of the hardships involved, it was felt that she would be put to a greater hardship in case the application for release was rejected in comparison to the hardship which would be suffered by the tenant in case the application was allowed. However, taking into consideration the situations of both the sides, the authorities below have felt that it was just and equitable to allow the release application in part and, therefore, it was partly allowed in the manner that only one room out of the four rooms in the tenancy of Sri Tewari has been directed to be released alongwith the lavatory on the first floor and also alongwith a portion of the out-house in the tenancy of the said tenant. Sri Kameshwar Prasad, learned counsel for the petitioner, contended that the authorities below were in error in holding that the need of the landlady was bona fide. It was further contended that the said authorities also erred in holding that on a comparison of hardships involved, the landlady stood to suffer a greater hardship by the rejection of her release application than the hardship which was likely to be suffered by the tenant in case the said application was allowed. Learned counsel for the petitioner further submitted that the authorities below are not justified in holding that the alleged partition between the landlady, Sri J. P. Shah and Smt. Sudha Shah was a genuine transaction. In fact, the said transaction was mala fide and its only aim was to get rid of the tenants including his client Sri B. N. Tewari. Learned counsel further contended that there was no evidence on record which justified the finding of the authorities below that, infact, there was a transaction and that the same was genuine. In this connection the learned counsel placed reliance on the following authorities of the Supreme Court. (1) M. N. Aryamurthi v. M. L. Surbharaya, AIR 1972 SC 1279. (2) Kaley v. Deputy Director of Consolidation, AIR 1976 SC 807= 1976 (3) SCC p. 119. On the other hand, Sri Tandon, learned counsel for the landlady, contended that this petition stood concluded by findings of fact and there could be no interference within the narrow ambit of jurisdiction of a petition under Art. 226 of the Constitution. He placed reliance on S. S. Phillai v. K. S. Phillai, AIR 1972 SC 2069 para 25.
(3.) TO appreciate the rival contentions, it is necessary that some more facts be stated. One Sri Inderlal Shah was possessed of big properties in Naini Tal. He died on 3-1-1976 and was admittedly succeeded by three heirs, namely, Sri J. P. Shah (bachelor son), the landlady in the case Smt. Shanti Shah (widow of predeceased son of Inderlal) and Smt. Sudha Shah, daughter of Smt. Shanti Shah. It was the case of the landlady that after the death of Sri Inderlal Shah, there was an oral partition between the co-owners of the property and as a result of the said oral partition, properties were allotted to each of the three co-owners. Admittedly, the building known as Shanti Villa was allotted to Smt. Sudha Shah. It is in this building that the landlady is presently residing. The landlady came forward with a case that she wanted to reside separately from her married daughter and, therefore, she sought the release of a part of the suite in question from Sri Tewari, who was occupying the same as a tenant. Sri Tewari's defence, inter-alia, was that the alleged partition was fictitious and it was not real. Its only aim was to get rid of the tenants. Certain circumstances were pointed out to establish the said contention. They have been examined by the authorities below. Inter-alia, it was suggested that if the partition was genuine, the landlady would have insisted on getting a portion of the property which was not in occupation of the tenant and it was some-what artificial that whereas Smt. Sudha Shah was given the entire Shanti Villa which was in self occupation of the co-owners, the tenanted buildings were allotted to the share of Sri J. P. Shah and Smt. Shanti Shah. It was further contended that there was no written document evidencing the partition. It was alleged to be oral. Learned counsel contended that the mere fact that on the basis of the oral partition, mutation was effected in the municipal records did not go to establish the genuineness of the transaction. Further, it was contended that the division was wholly unequal and extra-ordinary in the sense that Smt. Sudha Shah was getting the best of the allotment of the properties and the two other co-owners were allotted strikingly less valuable properties. It was contended that there was no real occasion for the co-owners to divide the properties and the entire exercise had only one single motivation and that was, as stated above, to get rid of the tenant. Sri Tandon, on the other hand, contested the contention that the partition was unequal or artificial. It has been stated in the counter-affidavit of the landlady filed in this case that the partition was not an unequal division of the properties as has been alleged from the side of the tenant.;