- (1.) Both these writ petitions have been filed by landlord against his tenants of adjoining properties. Eviction/release proceedings were initiated by landlord-petitioner against his tenants Radhey Shyam-respondent No. 2 in the first writ petition and Rameshwar Prasad-respondent No. 3 in the second writ petition in the form of P.A. Case No. 33 of 1981 under section 21 of U.P. Act No. 13 of 1972-Vishnu Kant Goswami v. Radhey Shyam and Rameshwar Prasad. In the release application it was stated that the room occupied by Radhey Shyam was required by the landlord for constructing latrine. Radhey Shyam is an Advocate and using the room in dispute as his chamber. Rent of the said room is Rs. 10/- per month. Radhey Shyam has also constructed his own house. In the release application it was stated that the shop occupied by Ramesh Prasad at the rate of Rs. 70/- per month was required by the landlord for starting business as under family partition in between him and his brothers the family business had gone in the share of other brothers of the landlord. Both the tenants denied the bonafide need of the landlord. They also alleged that the tenanted accommodations were endowment properties and landlord was not owner of the said properties. Tenants also denied any partition among landlord and his brothers and stated that the theory of said partition was put forward only to create ground of release while in-fact it was only a sham partition.
(2.) Prescribed authority held that landlord was owner of the property and his need for constructing latrine was bonafide. Accordingly, Prescribed Authority/Additional Civil Judge, IIIrd Allahabad allowed the release application in part. Room in occupation of Radhey Shyam was released while in respect of shop in possession of Rameshwar Prasad release application was rejected. Prescribed Authority further held that Radhey Shyam Advocate had constructed his own house and he could very well establish his chamber in the said house. Prescribed Authority decided the case through judgment and order dated 23.1.1987 against which both landlord-petitioner as well as Radhey Shyam tenant filed appeals. Landlord's appeal was registered as R.C. Appeal No. 151 of 1987 and the appeal of Radhey Shyam tenant was registered as R.C. Appeal No. 138 of 1987. Both the appeals were heard and decided by common judgment dated 21.5.1992 by IInd A.D.J., Allahabad.
(3.) Appellate Court also held that property in dispute was not endowed property and landlord was owner thereof. In respect of partition among landlord and his brother Appellate Court held that it was a sham transaction as initially original landlord Radha Krishna Goswami sought release of the disputed room/shop for his son and after dismissal of the said release application the theory of partition was set up. The plea of non-maintainability of release application against Radhey Shyam on the ground of non-impleadment of his brothers and sisters was negatived by the Appellate Court and Appellate Court held that release application was maintainable.;