B. N. Sapru, J. - (1.) THIS writ petition has been filed by Messrs Ram Nath Export Private Limited who are tenants of a portion of premises no. 6/354, New Khandari Road, Agra of which Raj Kumar Arora and Ratan Lal Arora were owners and which according to Raj Kumar Arora, has now come to the share of Raj Kumar Arora alone.
(2.) THE fact in this writ petition are that Raj Kumar Arora alone filed an application under Sec. 21 (1) (a) of U. P. Act 13 of 1972 (hereinafter referred to as "the Act"), being case no. 203 of 1973 of the court of Prescribed Authority/A.D.M.(E) Agra but subsequently after an objection being taken by the tenant, the other brother Ratan Lal Arora got himself impleaded as an applicant. THE case set up by the landlord was that M/s. Ram Nath Export Private Limited were tenants of three rooms, one kitchen, one store room, one laterine, one bath room, two verandahs and the court-yard on a re t of Rs. 400/- per month. Another portion was said to be in the tenancy of one Sri S. S. Ambwani at a monthly rent of Rs. 100/- against whom also an application under Sec. 21 (1) (a) of the Act was filed. That case in the application by the landlord was that Raj Kumar Arora had a large family consisting of himself, his wife, four sons and three daughters. It was said by the landlord that the entire family of Raj Kumar Arora was living in a portion of rented house bearing number 1838 old 16/130 new, Ghatia Azam Khan Agra on a rent of Rs. 45/- per month. This portion in the tenancy of Raj Kumar Arora consisted of two small rooms and a kitchen. It was then said that Raj Kumar Arora was a business man and was paying income tax in three figures and he was a man of status. Out of the 7 children of Raj Kumar Arora, six were school going' children. It was asserted that the accommodation in possession of Raj Kumar Arora was entirely insufficient and unsuitable for the requirement. He prayed that the accommodation in possession of the tenant be released in favour of the landlord. It was the case of the landlord that plot no. 56 was purchased by Raj Kumar Arora and his brother Ratan Lal Arora in May, 1965 and they lived in the house from May, 1965 till August, 1967. THEreafter, it was asserted, the accommodation was let out in 1967 to the tenant through Sri Trilok Nath of M/s. Trilbok Nath & Co., and to Mr. S. S. Ambwani. It was further the case of the landlord that there had been separation between the two brothers in the year 1969 and the house had been partitioned on 16-3-70. It was also the case of the landlords that the tenant had vacated part of the accommodation in his possession which had been occupied by Ratan Lal in whose share the portion occupied by him had fallen as a consequence of partition. It was averred that Ratan Lal had been impleaded as applicant no. 2 in order to avoid technical objection, it was then said that the tenant was occupying the building for business purposes and the building was being used by them in connection with their export business in shoes. It was further asserted that the landlord would suffer great hardship if the application for release was rejected whereas the tenant would not suffer any hardship in consequence of the release application being allowed. The defence interalia was that previously the tenancy was in the name of M/s. R. D. Ramnath Company. Thereafter the tenancy was changed in the name of M/s. Ram Nath Export Private Ltd. It was then asserted that there was no partition between the two brothers as asserted in the application under Sec. 21 (1) (a) of the Act. It was also the case of the tenant that the tenant would suffer great hardship if the application for release was allowed. It was said that customers from Russia come to the accommodation for inspection of goods. It was then said that the applicant was residing in house no. 1838 old 16/130 new Ghatia Azam Khan Agra and this property was owned by Smt. Shilawati wife of Sri Manohar Lal, the real elder brother of the applicant. It was said that in this accommodation he was in possession of 4 rooms, one kitchen, one latrine, one verandah, one pauli, Sahan on the ground floor. The tenant prayed that the application under Sec. 21 (1) (a) of the Act be dismissed. The Prescribed Authority by his judgment dated 24-6-1975 dismissed the application filed by the landlord. The landlord's application against Sri S. S. Ambwani was also dismissed.
(3.) THE landlord filed two appeals which were consolidated and disposed of together. Misc. Appeal no. 433 of 1975 was filed against M/s. Ram Nath Export Private Limited and Misc. Appeal No. 432 of 1975 was filed against Sri S. S. Ambwani. The first question taken up by the appellate authority was whether there was a bona fide need on the part of Raj Kumar for the accommodation in dispute. The appellate authority noted that for deciding this question it was necessary to decide whether there had been a partition between Raj Kumar and his brother Ratan Lal. The Prescribed Authority had found that there was no partition between the two brothers and the property was still joint. Documents had been filed before the Prescribed Authority to establish that a partition had taken place. The Prescribed Authority held that since the document itself showed partition of the house it required registration and it not having been registered, the same was inadmissible in evidence. The appellate authority held that the deed dated 15-12-67 was not a partition deed but was a memorandum of partition and as such did not require registration- The appellate authority found that after the partition the half portion allotted to Ratan Lal was numbered as 6/354-A and the other half allotted to Raj Kumar was numbered as 6/354. This fact was corroborated by the assessment receipts and municipal assessment paper. It noted that paper no. 51-K/6 is the deed of dissolution under which both the partners had separated their business and Arora cloth stores had come to the share of Raj Kumar. It took note of the fact that both the brothers had jointly taken a loan to build the house in dispute but it found that because of the partition they were paying the said loan separately according to their share. It then found that Raj Kumar is the owner of half portion of the house which bears the number 6/354. A portion of this house was found to be in possession of M/s. Ram Nath Export Private Ltd., and the other portion in the occupation of Sri S. S. Ambwani. Two rooms besides kitchen, latrine and bath room were found in possession of Sri S. S. Ambwani and three rooms besides kitchen, latrine and bath room were found to be in possession of M/s. Ram Nath Export Private Ltd. It found on the basis of the statement of Raj Kumar that he was in occupation of this rented house on the ground floor and only two rooms were in his possession and the other two rooms of the ground floor were in possession of his brothers-in-law Ramesh Kumar and Suresh Kumar. The accommdation in possession of Raj Kumar as a tenant was found to be rented at Rs. 45 /- per month. It found that the family of Raj Kumar consisted of himself, his wife and 7 children. Three of his daughters were 18 years, 10 years and 5 years old respectively. His sons were found to be studying in class 8, 6 and 3 respectively. It found that the need of the landlord, namely, Raj Kumar for the accommodation was bona fide and genuine.;