Sibghat Ullah Khan, J. - (1.) THIS writ petition was allowed ex -parte by me on 6.1.2006 as no one had appeared on behalf of respondent inspite of sufficient service when the writ petition was heard. Thereafter re -hearing/restoration application was filed which was allowed on 15.9.2006 and writ petition was restored and on the same date arguments of learned Counsel for both the parties on merit were also heard. The first three paragraphs of the judgment dated 6.1.2006 containing necessary facts are reproduced below: - - Accommodation in dispute is double storied having four small rooms and four verandahs on the ground floor and one room and a verandah on the first floor. House in dispute is situate in Hazaripur, Gorakhpur rent of which is Rs. 8/ - per month. The tenancy is continuing for about last 75 years (since about 1930). Landlord pleaded that he had three sons and two of them were to be married soon. Landlord further pleaded that he intended to establish two of his sons in the business from the accommodation in dispute for which he would convert the verandah on the ground floor into two shops and rest of the portion of ground floor would be utilized for residential purpose by one son after marriage and the first floor portion would be utilized for the residential purpose by his other son after marriage. As far as accommodation in possession of landlord is concerned, he pleaded that he had only three rooms in his occupation. Tenant countered the said plea and stated that landlord had five rooms in his possession. Landlord had also pleaded that tenant was posted at Lucknow hence he was residing there along with his entire family and was keeping the house in dispute locked. Prescribed authority found all the allegations of the landlord to be correct and allowed the release application. As far as residential accommodation in possession of landlord is concerned Prescribed authority had held that he had only three rooms in his possession. Appellate Court held that landlord had five rooms and five verandas in his possession. Through my earlier judgment dated 6.1.2006. I affirmed the said finding of the Appellate Court in that regard. Relevant para of the earlier judgment is quoted below: Trial Court was wrong on both the accounts. Earlier also litigation had taken place in between the parties. The matter had come up before Commissioner in the form of Revision No. 13 and R.C. of 1965 -66. Both the proceedings arose out of release application filed by the landlord. In the said judgment, it was mentioned that Inspector report dated 16.6.1965 showed that accommodation in possession of the landlord in Mohalla Jafra Bazaar consisted of two big living rooms, three small rooms, five, verandahs and two Court yards, one big and one small. The prescribed authority referred to the said judgment in respect of some other matter. Accordingly the only finding of the lower Appellate Court with which I agree is that landlord has got five rooms in his possession and not three rooms as alleged by him. However this fact will only mitigate his need but not completely wipe out or satisfy the same. Married people deserve separate and more accommodation. Moreover in the recent times concept of joint family is also weakening and more and more married couple desire to live separately. In any case gravity of need lies in the realm of comparative hardship. Tenants were keeping the accommodation in dispute locked at the time of filing of the release application and today also position appears to be the same (during arguments no one appeared for tenants respondents to show present place of posting of tenant Shambhoo Nath respondent No. 4). Long possession of the tenant was one of the factors, which weighed with the Appellate Court.
(2.) AS far as judgment of the Appellate Court is concerned, it is erroneous in law in as much as at the time when judgment was delivered need of the landlord was quite bonafide and comparative hardship also lay in his favour. Tenant who is a Government servant had been transferred to Lucknow. Tenant did not show that he made any effort to search alternative accommodation. Need of the landlord for residential purposes for two of his sons and to settle those two sons in business was quite bonafide. However, learned Counsel for the tenant -respondent has mainly argued that due to subsequent developments need of the landlord stood fully satisfied hence writ petition must be dismissed. He further submitted that at present tenant was posted at Gorakhpur. The subsequent developments relied upon by the learned Counsel are as follows: - - (i) After the decision of the writ petition landlord has died. (Substitution application allowed) (ii) One of the sons of landlord has acquired a shop in mohalla Jafra Bazar in Gorakhpur. (iii) The other son of the original landlord is running a P.C.O. (iv) Landlord had made further constructions in his residential house. These facts have been brought on record through Supplementary counter affidavit. As far as death of the landlord is concerned it will not make much difference as in the release application need was set up for two of his sons who are now themselves petitioners.
(3.) AS far as acquisition of shop in Mohalla Jafra Bazar by one of the sons of original landlord is concerned learned Counsel for the landlord has categorically stated that the said shop is on rent with him. Nothing specific has been stated in any of the affidavits filed by the tenants as to how son of the original landlord is owner of the said shop. In absence of any evidence to that effect ownership of one of the sons of original landlord of the shop in Jafra Bazar claimed by the tenant cannot be accepted.;