K.N. Goyal, J. - (1.) THE dispute in this writ petition relates to a residential house situated in the city of Lucknow. The house is owned by Respondent No. 3. It was originally owned by her father who had died. The Respondent is her father's sole heir but, according to her, another portion of the same house was left by her father to be occupied by her father's younger brother's widow, Smt. Vimla Kumari, for her lifetime. Thus that portion is not available for occupation by the Respondent. The Respondent is an old widow. She had been living sometimes with one son of hers and sometimes with another. Now out of three sons, two have died and one is employed in a foreign country, namely, Oman, in her old age she does not find it convenient to live with her widowed daughters -in -law and she wants to live in her own house. As she has no other accommodation available with her, she was in genuine personal need of the same. With these allegations she first moved an application under Section 3 of the old Act, namely, the U.P. (Temporary) Control of Rent and Eviction Act, 1947. That application was dismissed by the Rent Control and Eviction Officer (for short, RCEO). On her revision before the Commissioner the case was remanded to the RCEO. While the case was pending before RCEO after remand, the new Act, namely, U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act, 1972 came into force, and in accordance with the provisions of Section 43(2)(a) thereof the case was transferred to the Prescribed Authority. The Respondent, however, allowed that case to go in default and thereafter filed a fresh application under Section 21(1)(a) of the new Act. That application came up before the RCEO as the Prescribed Authority. He dismissed the same. On appeal by the Respondent the application was allowed. Aggrieved thereby the Petitioner has come to this Court under Article 226 of the Constitution.
(2.) THE petition has been contested by the Respondent. It appears that from time to time several affidavits on both sides came to be filed and were permitted to be taken on the record. Learned Counsel for the parties, Sri B.C. Saxena and Sri P.C. Srimal, have, however, carefully taken me through the relevant averments in the petition and affidavits.
(3.) THE learned District Judge as the appellate authority under the Act has held that the Respondent cannot be compelled to live with her sons or daughters -in -law against her wishes and it is a justifiable desire of hers to live in her own house independently. It was contended on behalf of the Petitioner that assuming the Respondent's desire to be genuine, she should have first tried to eject Smt. Vimla Kumari. It has been alleged by the Petitioner that Smt. Vimla Kumari had never been formally married to the Respondent's uncle and had never been given any right of residence for her lifetime. Insinuations have been made about her true marital status and about her living with the Respondent's father. The Petitioner has himself filed with one of his affidavits a copy of the alleged will relied on by the Respondent and was sit the same time challenged the genuineness of the same. According to that will, the Respondent's father expressed sympathy for Smt. Vimla Kumari who had been widowed at a very young age, her husband having died while serving in the military, and also expressed great praise for her having looked after him in his old age with great devotion and care. The will gives the rights of ownership to the Respondent in respect of the whole house but grants a right of residence for lifetime in respect of a portion of the house to Smt. Vimla Kumari. The will describes Smt. Vimla Kumari as the testator's younger brother's widow. According to the Petitioner, the alleged will is a fake document and Smt. Vimla Kumari has been described as a 'Paharin' who was living with the Respondent's father. The averments made in various affidavits about the lady are not in good taste and are not very relevant either. There is no dispute about ownership or right of residence as between Respondent and Smt. Vimla Kumari, and the Petitioner being a mere stranger to the family, has no right to raise a controversy where none exists. Whatsoever be the nature of relationship of Smt. Vimla Kumari with the Respondent's father or uncle or with the family as a whole, the fact is not disputed that Smt. Vimla Kumari was living in the house during the lifetime of the Respondent's father and with his consent. The Respondent's father, even according to the suggestions of the Petitioner, must have desired to have provided for her peaceful residence even after his death. In the circumstances, there is nothing unnatural about his having made a bequest of right of residence for life in his own house even after his death. Unless such right had really been bequeathed to Smt. Vimla Kumari, it is difficult to appreciate why the Respondent should concede that right to Vimla Kumari against the Respondent's own interest. The portion in dispute is on the ground -floor, while Smt. Vimla Kumari has been living on the first -floor. According to the will, Smt. Vimla Kumari was given right of residence in respect of the ground -floor portion. According to the Respondent, as the ground -floor portion was not vacant, she had been given the first -floor portion in lieu thereof for her residence under a mutual arrangement between Smt. Vimla Kumari and the Respondent. The Petitioner has sought to take exception to this arrangement as well and has contended that Smt. Vlmla Kumari could have no legal right to reside on the first floor and it was for the Respondent to have asked Smt. Vimla Kumari to vacate the same and then for Smt. Vimla Kumari to have moved the Prescribed Authority against the Petitioner for ejectment. This contention is also untenable because it is not the Petitioner's case that Smt. Vimla Kumari is the owner of the ground -floor portion which is under his tenancy. The relationship of landlord and tenant has never been denied by him. He acknowledges that the Respondent is the landlady. It is, therefore, not understood how anyone except the Respondent could have applied for ejectment under Section 21. Surely, Smt. Vimla Kumari could not maintain any such application. Now if Smt. Vimla Kumari was in the good books of the Respondent's old father, since deceased, is it reasonable to require the Respondent first to take steps to evict Smt. Vimla Rumari and thus disregard the wishes of her deceased father? If the Respondent has graciously given to Smt. Vimla Kumari the first -floor portion instead of the ground -floor, she is not to be blamed for the same, nor is she to be penalised on that account. The fact remains that the portion on the first -floor is not actually available for occupation by the Respondent. The arrangement made between the Respondent and Smt. Vimla Kumari in this behalf is perfectly valid and reasonable and it is not open to the Petitioner to question the same.;