- (1.) Hears Sri A.K. Bajpai, Advocate, for petitioners. Sri Manish Mehrotra, Advocate, has put in appearance on behalf of respondents. Petitioners, Murlidhar Agarwal (now deceased and substituted by his legal heir) and Rajkumar Agarwal (now deceased and his name has been deleted from array of parties), both sons of Late Radhey Shyam Agarwal, instituted proceedings under section 21(1)(a) of U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 (hereinafter referred to as "Act, 1972") by filing an application seeking release of accommodation in question on the ground that both were unemployed having no other source of income and, therefore, want to start their own Cinema Business in the disputed accommodation. This application was allowed by the Trial Court by its judgment dated 20.12.1983 where against the respondents preferred Rent Control Appeal No. 52 of 1984 which has been allowed by Appellate Court i.e., 11th Addl. District Judge, Allahabad vide impugned order dated 18.11.1998. The Appellate Court after setting aside judgment of Prescribed Authority has rejected petitioners' Release Application holding that the case set up by applicant-petitioners was founded on false and incorrect facts about their engagement/earning/income showing that their claim of personal need was neither genuine nor bona fide and the Trial Court, in taking otherwise view, has clearly misdirected itself in allowing application of petitioner-landlords. It appears that in order to controvert the claim of petitioners that they have no other profession or business or employment etc., respondents took up the plea that petitioners have shares in property of their grand father Radhey Shyam Agarwal at various places. Ajanta Talkies was owned by Radhey Shyam Agarwal and after his death, it devolved on his legal heirs which included petitioners also. It is further pleaded that petitioners have partnership/shares with Firm Radhey Shyam and Sons and M/s. Murlidhar Gyanendra Kumar etc.
(2.) It is interesting to note that Trial Court while admitting this fact that Sri Radhey Shyam, father of petitioners, was owner of Ajanta Talkies, has declined to accept devolution of the said property on the petitioners only on the ground that no document showing mutation in the name of petitioners was produced and, therefore, it cannot be said that property stood devolved on sons of Late Radhey Shyam though ownership or Sri Radhey Shyam in respect to Ajanta Talkies and relationship of petitioners with Sri Radhey Shyam was found proved by Trial Court, as is evident from following: Admittedly Radhey Shyam Father of applicant is owning Ajanta Talkies. He has died. The question is whether the applicants inherited the property of his father. The opposite party filed a affidavit paper No. 206/B. In para No. 4 and 6 opposite party stated that the properties of Radhey Shyam is inherited by applicant. Their name is mutated in records. The wife of applicant No. 1 is co-sharer in Ajanta Talkies. The applicant filed the affidavit 208/B and died the exists of affidavit 206/B and stated that no intimation has taken place in the name of applicant of the property of deceased Radhey Shyam. In affidavit 214/B applicant stated that he has no connection with Ajanta Talkies. The father of applicant has died. If applicant have inherited the property the name of applicants certainly would have recorded in Nagar Palika records as owner. But opposite party filed no such paper to prove that the properties of deceased Radhey Shyam is inherited by applicants. It lies in the knowledge of opposite party that applicants inherited the property of deceased father. Therefore the burden of proof is on the opposite party to prove the fact that the properties of deceased are inherited by applicants. No proof of such fact is filed by opposite party, therefore, believe the affidavit of applicant paper No. 208/B that they have not inherited the property of his deceased father. The owner of Ajanta Talkies was Radhey Shyam, the father of applicants, He has died. The applicants not inherited his property therefore they cannot be said as owner of Ajanta Talkies.
(3.) Further the factum that applicants have their share in Firms M/s. Radhey Shyam and Sons was found proved by the Trial Court as is evident from page No. 199 of paper book which reads as under: The applicant No. 1 admitted in his replication paper No. 28/A in para 9 that this share is only not in firm Radhey Shyam and Sons the applicant also admitted that he has 10% share in the firm M/s. Murlidhar and Gyanendra Kumar. There is no evidence on the file to show that applicant has more share than is admitted by him in aforesaid firms. Secondly applicant gets the salary from Ajanta Talkies Rs. 1200/- p.m. and Rs. 500/- per month from the firm M/s. Radhey Shyam and Sons. These are sources of income of applicant No. 1.;