S.U.Khan, J. - (1.) This is landlord's writ petition arising out of eviction/ release proceedings initiated by him against original tenant Abdul Rahman (since deceased and survived by respondents No. 2 to 7) on the ground of bonafide need under section 21 of U.P Act No. 13 of 1972. Property in dispute is first floor accommodation consisting of four rooms, one store, kitchen, bathroom and latrine etc. The entire house of which accommodation in dispute is a part bearing No. 88/ 457, Humayun Bagh, Kanpur Nagar was purchased by the landlord petitioner from its previous owner through registered sale deed dated 19.8.1980. Abdul Rahman was tenant of the premises in dispute since before its purchase. Release application was registered as R.C case No. 135 of 1983. Prescribed authority/ VII Additional City Magistrate, Kanpur Nagar through judgment and order dated 5.9.1994, allowed the release application. Against the said judgment and order respondents 2 to 7 filed Rent Appeal No. 119 of 1994. VI Additional District Judge, Kanpur Nagar through judgment and order dated 5.10.1995, allowed the appeal set-aside the judgment and order of the prescribed authority and dismissed the release application of landlord petitioner hence this writ petition by landlord.
(2.) Landlord had taken up the case that he was residing in a tenanted house containing only one room. In view of this fact there can not be any doubt that his need was bonafide. It has been held by the Supreme Court in G.K. Devi v. Ghanshyam Das, AIR 2000 SC 656 that a house in which landlord is residing as a tenant can not be said to be available to him.
(3.) However the appellate court allowed the appeal and held that landlord had no bonafide need on the ground that an equal accommodation of four rooms in the same building which was purchased by the landlord was in occupation of another tenant Abrar Ahmad since before its purchase by the landlord which was later on vacated by Abrar Ahmad and landlord sold the said portion to his real brother which was a sham transaction. Appellate court has also found that another portion in the same building was also vacated by one Shahjahan Babu. It was stated during arguments that against the other tenant Abrar Ahmad also landlord petitioner had filed release application and it was only after dismissal of writ petition filed by Abrar Ahmad that petitioner was able to get possession. The case taken up by the petitioner is that when he purchased the building in dispute in the year 1980 his real brother had sent Rs. 70000/- through draft to him for purchasing the said house from Makkah (Saudi Arabia) and to repay the said debt he had sold the portion vacated by Abrar Ahmad to his brother on 26.4.1990. After taking into consideration the entire material on record and the attending circumstances, the lower appellate court thoroughly disbelieved the case put forward by the landlord in this regard. Instead of finding any fault with the said finding of the appellate court, I fully approve the same. Landlord filed release application against Abrar Ahmad on the ground of his bonafide need and after getting possession he sold it to his brother. Whether the sale transaction is genuine or sham it will not make any difference. Landlord had got vacated the said portion on the ground of bonafide need and he was duty bound to use the same. In case he sold it, it disproved the bonafide need of the landlord petitioner. In fact lower appellate court has found that the said transaction is utterly a sham transaction and portion vacated by Abrar Ahmad continues to be in possession and under the control of the petitioner.;