Mathur, C.J. - (1.) THIS is an appeal by Chaturbhuj Sharma against the order of a learned single Judge of this Court allowing the writ petition of Durga Dayal and U. P. Tuberculosis Association, Lucknow, and thereby quashing the allotment order dated 25-10-1971 passed by the District Magistrate under Section 7 of the U. P. (Temporary) Control of Rent and Eviction Act in favour of the appellant.
(2.) THE material facts of the case are as follows:-- The disputed house known as 'Bhagwati Niwas' can, for purposes of this proceeding, be deemed to consist of two parts, the northern portion is in the occupation of the appellant. The dispute centres about the southern portion and the allotment order in question pertains to this portion. Durga Dayal, petitioner No. 1, purchased the house in 1939. In or about 1942 the northern portion was let out to one Sardar Rajendra Singh, and thereafter to the appellant. The petitioner's case is that he (Durga Dayal) was throughout in occupation of the southern portion though in the year 1949 he permitted his brother, Shri (later Mr. Justice) S.D. Khare, to occupy the southern portion. This portion was later occupied by his sister's husband, Shri (later Mr. Justice) Gur Saran Lal Srivastava, and thereafter his son. His another sister's son Dr. B.P. Singh, was transferred to Lucknow and as no residence was available for his occupation he was also allowed to live in the southern portion with effect from 11-7-1966. When an official residence was allotted to Dr. B. P. Singh, sometime in August, 1971, he shifted to the Government accommodation. The petitioners' case is that the southern portion was throughout in his (Durga Dayal's) occupation, though the relations mentioned above were allowed to reside along with him. On 5-10-1971, the appellant, Chaturbhuj Sharma, applied to the Rent Control and Eviction Officer for allotting the southern portion of the house to him. On 9-10-1971 the Inspector contacted the petitioner No. 1 in connection with the allotment application when petitioner No. 1 handed over the writing which has now been filed by the District Magistrate under orders of this Court passed a few days back. Further inquiry was made by the Town Rationing Officer, Divesh Chandra Ghosh, whereafter he submitted the report Annexure B-2 to his counter-affidavit. The report is dated 23-10-1971. It was thereafter on 25-10- 1971 that the impugned allotment order was passed.
(3.) IT is not in dispute that on 22-10-1971, petitioner No. 1, Durga Dayal, executed a sale deed in favour of petitioner No. 2, U. P. Tuberculosis Association. A Bank Draft for Rs. 60,000.00 and a cheque for the remaining sale consideration were handed over to petitioner No. 1 the same day. The possession over the southern portion was, according to the petitioners, delivered to petitioner No. 2 on the morning of 23-10-1971. Petitioner No. 2 informed the District Magistrate, to be more correct the Deputy Commissioner, Lucknow, of the transfer and also of the delivery of possession under letter dated 23-10- 1971, Annexure 3 to the writ Petition. Similar information was also communicated to the Town Rationing Officer on 23-10-1971 when he visited the spot for inquiry as shall be evident from his report Annexure B-2 to his counter-affidavit. Even then the allotment order was passed on the 25th of October. The sale deed was, however, registered on 28-10-1971.;